Editors note: We are pleased to present this guest perspective from Brad Brooks-Rubin, of counsel at Holland & Hart in Washington DC. Brad is the former Special Advisor for Conflict Diamonds in the Bureau of Energy, Economic, and Business Affairs at the United States Department of State, where he provided working level representation for the United States in the Kimberley Process. His expertise also extends to conflict minerals.
“Unicorns! Show Ponies! Where’s the Beef?” As NFL fans may recognize, this was the call an elated announcer made recently when his team scored a game-winning, come-from-behind touchdown. This may seem a strange way to begin a post on developments in the conflict in the Democratic Republic of the Congo (DRC) and Dodd-Frank 1502, but the quote is quite appropriate when considering the apparent end of the M23 rebellion in the eastern DRC.
For those who unfamiliar with the details of what has just been announced, the M23 armed group (re)launched a rebellion in April 2012. The M23 was a militia formed ostensibly to protect Tutsi ethnic group interests, and its main leaders had previously been a part of various militias, most notably the CNDP (National Congress for Defense of the People), which formed in 2006 to combat Hutu armed groups, principally the FDLR (Democratic Forces for the Liberation of Rwanda). When the effort to integrate the CNDP into the national army failed, the leaders rebelled again and named themselves M23, in dubious honor of the March 23, 2009 date on which the CNDP’s peace deal with the DRC government had been signed.
If Tutsi and Hutu sounds like the groups involved in the Rwanda genocide, they are. In many respects, the current fighting in eastern Congo began in the wake of that genocide (you can do no better than reading regional expert Jason Stearns’ Dancing in the Glory of Monsters to understand this in more detail) and thrived in a context of limited Congolese governmental capacity and control, near-absent infrastructure, few economic opportunities, and a range of regional political entanglements, principally involving Rwanda. The role of these armed groups and the many more like them, as well as elements of the Congolese national army, in the minerals trade was the main impetus for Dodd-Frank 1502.
In the short term, there is much to be hopeful about. International and regional diplomatic/political attention is at a high level and focused. The international military presence transitioned recently from a purely defensive, near-observer force, to one mandated to go on the offensive against armed groups. Rather than sit back after playing the key role in the M23 defeat, this Intervention Brigade now appears to be turning its attention to the FDLR, whose defeat would be a potentially even more significant achievement. On a parallel track, President Kabila is leading a dialogue to bring the country together in the wake of the contentious 2011 elections and recently announced he would create a government of national unity. Efforts to stabilize the Ministry of Mines and overall minerals trade are progressing. Only time will tell how much of a role 1502 and other efforts to reform the minerals trade have played in these broader changes.
Unicorns and show ponies indeed.
In the long term, however, these hopes will turn to the announcer’s question — “where’s the beef” — as a breathtaking swath of underlying concerns remain. First, will the cease fire hold? After all, the very name of M23 stands for the principle of failed détente. Many other armed groups continue to wreak havoc; indeed, in many cases, such as the various “Mai Mai” groups, that appears to be their sole goal. Second, can DRC achieve broader development gains? The policy changes and capacity building needed to implement those changes are enormous, and you can read a thoughtful and detailed analysis here. Land reform, economic opportunities, security sector reform, infrastructure, bureaucratic and administrative capacity, the role of Rwanda and DRC’s other neighbors – just to name a few. Finally, in terms of 1502, will efforts to develop a responsible minerals trade in the DRC continue to make progress? The meeting of the OECD/ICGLR/UN forum on minerals due diligence this coming week in Kigali is well-timed and hopefully will result in further progress on the standard setting for upstream and downstream efforts.
For those wondering, section 1502 does allow the President of the United States to terminate 1502 when it can be certified that “no armed groups continue to be directly involved and benefitting from commercial activity involving conflict minerals.” This week’s tremendous developments aside, it is clear that there are many miles to walk until this ultimate goal is reached. As a result, the international community and industry will need to continue to channel Clara Peller when thinking about 1502 and the overall situation in the DRC.