Congolese families of children killed or injured while mining for cobalt have launched a landmark legal case against the world’s largest tech companies, including Google and Apple.
The lawsuit, which also named Dell, Microsoft and Tesla, was filed in Washington DC by human rights group International Rights Advocates on behalf of 14 families, who have accused the technology firms of knowingly aiding and abetting forced labour practices in the Democratic Republic of the Congo (DRC).
“Defendants Apple, Alphabet, Dell, Microsoft and Tesla all knowingly aided and abetted and benefited enormously from a system that forces impoverished children, including the plaintiffs and others similarly situated, to perform extremely hazardous work without safety equipment of any kind for less than subsistence wages in order to barely eke out a minimal human existence,” said the complaint.
The families of the dead and injured children are also seeking damages from all defendants for unjust enrichment, negligent supervision, and the intentional infliction of emotional distress.
The plaintiffs sustained a variety of injuries, including smashed limbs and broken spines, while others were killed by tunnel collapses or fell into unprotected mining shafts.
The lawsuit marks the first legal challenge of its kind against a technology company, many of which rely on their cobalt supply chains to power products like electric cars, smartphones and laptops.
“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,” said the complaint.
The complaint further alleges that the children were illegally working in mines operated and controlled by UK mining firm Glencore, which then sold the extracted cobalt to Umicore, a Belgian materials processing company, for refinement.
Once refined, Umicore would then sell on the cobalt directly to the technology companies.
Other plaintiffs claim to have worked at mines owned and operated by Chinese firm Zhejiang Huayou Cobalt, which allegedly supplies Apple, Microsoft and Dell.
“Defendants… are knowingly benefiting from and providing substantial support to this ‘artisanal’ mining system in the DRC,” stated the complaint.
“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.”
It added that, given all the publicly available information, these companies “reasonably should have known” about the abuses taking place in their cobalt supply chains.
Responding to Computer Weekly’s request for comment, Microsoft said it was unable to remark on ongoing legal cases.
Apple, Google, Dell and Tesla did not immediately respond to Computer Weekly’s enquiries.
‘Reasonably should have known’
The DRC is home to what the International Rescue Committee has called “the world’s deadliest conflict since World War II” – 5.4 million people were killed between 1998 and 2008, with approximately 45,000 deaths occurring each month.
It is also home to a wealth of natural resources, including an abundance of minerals that are vital components in electronic products.
On top of cobalt, the most prominent are tin, tantalum, tungsten and gold, otherwise known as 3TG minerals.
Currently, Section 1502 of the Dodd Frank Act, passed by Congress in 2010, requires US-listed companies to ensure that the raw minerals used in their products are not tied to the conflict in the Democratic Republic of Congo.
“Not only are [the defendants] knowingly benefiting from the extremely cheap labour of child cobalt miners, they are knowingly obscuring the true facts of their cobalt supply chains to extend the time they continue to benefit from the cheap exploited labor”
International Rights Advocates lawsuit
While it applies mandatory reporting requirements, they are not backed up by any legal penalties, and only apply to 3TG minerals – not cobalt.
Instead, Dodd Frank carries with it the risk of reputational damage in the form of public naming and shaming, whereby a non-compliant company is not given a conflict-free mineral certification.
“None of them actually perform the required due diligence to verify whether children are mining cobalt in their supply chains,” said the complaint.
“Not only are [the defendants] knowingly benefiting from the extremely cheap labour of child cobalt miners, they are knowingly obscuring the true facts of their cobalt supply chains to extend as long as possible the time they continue to benefit from the cheap exploited labor of plaintiffs and others similarly situated.”
According to the Harvard Business Review, which analysed every conflict minerals report submitted to the US Securities and Exchange Commission (SEC) between 2014 and 2016, most multinational corporations – some 80% – are still not sure where the raw materials they use come from.
Only 1% of the enterprises were able to declare that their products were conflict-free beyond reasonable doubt.
Furthermore, Know The Chain, an organisation attempting to drive awareness and corporate action on the issue of forced labour, evaluated 40 tech companies on their efforts to address the problem in their supply chains in its 2018 Information and communications technology benchmark findings report.
It found that only 12 of 40 outline the steps they are taking to source raw materials responsibly.
Scores out of 100 were also given to each company based on an analysis of their disclosures and performance against seven indicators – commitment and governance, traceability and risk assessment, purchasing practices, recruitment, workers voice, monitoring and remedy.
The average score was 32 out of 100, with the report finding that “there is often a disconnect between the policies and processes that companies have in place and the evidence that those are effectively implemented”.
“Defendants knew or reasonably should have known that unless they intervened to protect plaintiffs and properly supervise, prohibit, control and/or regulate the conduct described herein, plaintiffs would suffer the injuries alleged”
International Rights Advocates lawsuit
Given the publicity around the mining of cobalt and other minerals, the complaint therefore argues that “defendants knew or reasonably should have known that unless they intervened to protect plaintiffs and properly supervise, prohibit, control and/or regulate the conduct described herein, plaintiffs would suffer the injuries alleged herein”.
It added: “Defendants also had the ability to cease purchasing DRC cobalt until such time as the violations alleged herein were stopped and/or prevented.”
‘Hiding behind naïve certification processes’
The complaint also pointed out that the technology companies in question claim to the public that their policies and practices are designed to prevent forced or child labour.
However, while each company has some sort of responsible mineral sourcing programme, they are all voluntary and based on self-reporting, as are the various industry coalitions that were set up to eliminate the use of conflict minerals.
Daniel Jones, CEO of bext360, a blockchain traceability solution for commodities such as coffee and cotton, has worked extensively on the ground in the DRC, where he evaluated supply chains and was involved in the first US-owned company to successfully export conflict-free minerals from the country.
“I think the big companies are just hiding behind these naïve certification processes, especially in conflict minerals. If you talk to the big companies they will say it’s not an issue because we have these [certifications], or the smelters have these certifications – but the problem is not at the smelter, it is on the ground in the DRC,” he said.
“As soon as one of these companies goes out and does a big audit of their supply chain, we all know what they’re going to find. It’s an open secret in the conflict mineral space – they’re going to find that it’s not good, and so their solution is should we just keep playing the game and be complicit but protect ourselves.”
“The big companies will say it’s not an issue because we have these [certifications], or the smelters have these certifications – but the problem is not at the smelter, it is on the ground in the DRC”
Daniel Jones, bext360
Jones added that tech companies must take accountability for the impact of their business practices, and the role that plays in the conflict in the DRC.
“These large companies worth billions say they are waiting for the common, industry-wide solution, but really they are just hoping this issue goes away,” he said.
“It is time for the tech companies to step up and apply technology to solve the problem. The gig is up, they know the problem, and now they must fix it or be held accountable.”
Many companies are currently in the process of digitising their supply chains, using technological traceability solutions such as blockchain, in an effort to gain end-to-end visibility.
However, former president of digital supply chain at multinational software company SAP, Hala Zeine, now chief product officer for process mining software company Celonis, emphasised the fact that technology is only an enabler and not a silver bullet.
“Ultimately, it’s really about business decisions and how people behave. Leaders are ultimately responsible for deciding how to source, where to source from, and no technology can take that decision away,” she said.
“It’s getting to the point where anyone who makes an unethical decision is doing so even though there are tools in place that allow them to correlate different data, to find out what’s happening without directly going there.”
In the European context, the EU Conflict Minerals Regulation is set to come into force on 1 January 2021, which will attempt to stem the tide of 3TG conflict minerals from across the globe by introducing stricter measures for downstream companies, like those named in the lawsuit.
Cobalt, however, is not currently covered in the scope of the proposed regulation, and although the EU regulation is set to introduce a mandatory due diligence framework, it is unclear at the moment if this will be accompanied by any legal penalties for non-compliance.
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