Five major technology companies named in a lawsuit over the mining deaths of Congolese children have filed a joint motion to dismiss the case, claiming that the “expansive theories alleged in the complaint are not supported by law”.
The lawsuit against Alphabet, Apple, Dell, Microsoft and Tesla was filed in Washington DC in December 2019 by human rights group International Rights Advocates on behalf of 14 families, who accused the technology firms of knowingly aiding and abetting – and subsequently benefiting from – forced labour practices in the Democratic Republic of the Congo (DRC).
“Defendants know and have known for a significant period of time the reality that DRC’s cobalt mining sector is dependent upon children, with males performing the most hazardous work in the primitive cobalt mines, including tunnel digging,” said the original complaint. It added that these companies “reasonably should have known” about the abuses taking place in their cobalt supply chains, given all the publicly available information.
The complaint continued: “The cobalt supply chain… is a “venture” that exists for the purpose of maintaining a steady supply of cheap cobalt that is mined by peasants and children. The supply chain is, by design, hidden and secretive to allow all participants to profit from cheap cobalt mined under extremely hazardous conditions by desperate children forced to perform extremely hazardous labour without safety equipment of any kind.”
However, in a motion to dismiss filed on 25 August 2020, the companies contend that, under definitions contained in the Trafficking Victims Protection Reauthorization Act (TVPRA), “an entire global supply chain is not a ‘venture’”.
It added: “The plain meaning of the word ‘venture’ under the TVPRA… requires more than simply being a part of a global supply chain. Indeed, if the law were otherwise, any manufacturer or consumer of products that contain cobalt supplied by Glencore, Umicore or Huayou Cobalt would be part of an unlawful ‘venture’ and subject to potential enforcement, including potential criminal enforcement.”
The companies further claim that the maimed and dead child miners were not “forced” into labour under definitions in the same Act, which they said only encompasses labour that is compelled by direct threats of force or harm from the employer, and not labour that is compelled by other circumstances, such as economic pressure.
In a third and final substantive argument, the companies also claim they did not have “requisite knowledge” of the abuses at the specific mining sites mentioned, and that “knowledge of a general problem in an industry, for example, is insufficient” to prove they knew about the violations that had injured the plaintiffs.
“Plaintiffs’ allegations are insufficient under this standard because they constitute, at most, general assertions that defendants should have known of labour issues in the DRC or in the cobalt mining industry generally,” it said.
Despite claiming not to have the “requisite knowledge”, however, the five tech companies also claim that “each defendant has established robust due diligence practices in accordance with guidance from the Organisation for Economic Co-operation and Development [OECD] and requires its suppliers to comply with codes of conduct as a condition of doing business with the company”.
It added: “Defendants’ policies prohibit certain unlawful labour practices, including the use of child labour, at any tier of the supply chain and require regular supplier audits to evaluate compliance.”
The companies were offered a chance to comment on this seeming discrepancy, but Computer Weekly had received no response by the time of publication.
Speaking to Computer Weekly, the executive director of International Rights Advocates, Terrence Collingsworth, who is representing the Congolese families, claimed the companies were trying to have it both ways. “They’re telling the consumers ‘don’t worry, we’ve got this under control, look, here’s our policy, we jumped right in as soon as we heard about this problem and we fixed it’, and then they tell the court ‘we’ve never even been there – where is that place?’,” he said.
Collingsworth added that in all his years of litigating against multinational corporations, “I have never run across a big corporation that is going into a new supply chain or a new venture somewhere where they don’t either have an internal [or external] risk assessment”.
While Collingsworth said International Rights Advocates and the plaintiffs will not be able to get those reports until the discovery phase of the case, he claimed he could “absolutely guarantee every one of these companies has some kind of written risk assessment that says ‘by the way, the mining conditions are horrible in the DRC, and there’s a lot of kids doing it’.”
On the point made by the companies about a global supply chain not being a venture, Collingsworth said: “The law that exists about venture explicitly says that it need not be a legal relationship, just an association ‘in fact’.”
He added: “Whether they wrote it down or coordinated it in a back room somewhere, all of these companies together are cooperating in this very limited cobalt supply chain – there aren’t 100 companies buying cobalt from Glencore, there are eight or nine and we’ve sued five of them. It’s a small group of people that are cooperating to protect the essential supply chain to get their cobalt.”
Collingsworth said he had confidence in being able to prove the “venture” because similar standards also exist in the US’s racketeering statutes, which have been used to prosecute loosely organised drugs cartels that are five or six steps removed from actual street-level drug sales.
Speaking with Computer Weekly, Nina Burri, an ex-human rights prosecutor at The Hague who now works for Swiss non-governmental organisation Bread for All, and who spent two weeks in the DRC as part of an investigation in February 2020, said the use of child labour in the country is “not even an open secret – it’s just there, everybody knows that”.
Burri added: “For the companies, if they do their due diligence, then they can open up their books and say ‘look, we did the due diligence, we’re sure there were no children involved in this and this mine from where the cobalt entered our supply chain’ – if they did their due diligence, they should just open up their books.”
However, she pointed out that Glencore, which is named as a one of the primary cobalt suppliers in Collingsworth’s original complaint (alongside Umicore and Huayou Cobalt), has disputed that any cobalt mined by children enters its supply chain.
“They take the position that even if children might be sourcing on the territory of their mines, it doesn’t enter Glencore’s supply chain,” said Burri. “For years now, Glencore has claimed that it has nothing to do with artisanal miners illegally entering their mines. They even said that last year, when more than 3,000 artisanal miners were on their mine [on the Kamoto Copper Company mine owned by Glencore].”
In June 2019, The Guardian reported that Glencore had observed a growing number of artisanal miners trespassing at the Kamoto Copper Company mine, estimating that an average of 2,000 miners were gathering illegally on the site every day.
All five technology companies were asked by Computer Weekly what due diligence they had conducted in the DRC to ensure their cobalt supply chains were free from child labour, but had received no response by the time of publication.