Once again, pressure is mounting on the Kimberley Process to amend the definition of conflict diamonds. This time it was Belgium that presented a resolution to the European Commission asking to expand the Kimberley Process’ mandate to those diamonds extracted in conditions of “serious violations of human rights”. Similar calls have been made cyclically by NGOs over the past years, following the break out of the Marange diamonds case back in 2008.
What is different today is that the European Union has been officially charged with taking action on the issue. Due to Brussel’s weight in the Kimberley Process, of which it is the single largest member, this event is likely to have relevant consequences.
In the public debate the possibility of mentioning human rights in the definition of conflict diamonds seem to have become some sort of mantra, which would somehow put an end to all the controversies that struck the diamond industry in its recent history. But all the evidence suggests that the present structure of the Kimberley Process makes it unfit for dealing with the protection of human rights, and efforts in this sense are likely to put the scheme in a difficult situation.
Some history
With an increasing number of inter-ethnic conflicts emerging in Africa in the last decade of the 20th century, diamonds became an important source for war financing. Footages of brutal human rights abuses committed in the diamond fields of Sierra Leone, Liberia, the Democratic Republic of Congo, and other countries shocked diamond consumers across the globe. Pressure mounted fr om the public, NGOs and the United Nations to act swiftly and prevent blood diamonds from entering the regular market. But mediating between the conflicting interests of almost 80 countries, mining companies and the civil society appeared an impossible task. Against all odds, negotiating parties gathered in Kimberley, South Africa in 2000 and came out with a relatively simple and easy to implement solution: the Kimberley Process Certification Scheme.
The scheme set a series of procedures for the participating members, based on which they were asked to certify that rough diamonds exported by one country were not used to finance armed conflicts. Following the stipulation of the Kimberley Process Certification Scheme, the participating states were required to implement a series of measures. To guarantee that rough diamonds are conflict free, they need to be shipped in a tamper-resistant sealed container and accompanied by a certificate of authenticity.
Standards for participating in the scheme were kept at a minimum level, so to encourage states in joining in rapidly. Three were the keys to its success. The first was the decision to conceive it as a voluntary and non-binding system based on mutual trust and peer reviews, rather than a sanctions regime. The second key was that all decisions must be taken by consensus, and therefore every state has de-facto veto powers. Finally, and most importantly, it was decided to lim it the extent of the agreement to “rough diamonds used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments”.
Under customary international law, states are forbidden from giving any kind of assistance to rebel groups operating in foreign countries. Hence the ban on conflict diamond did nothing more than reaffirming a consolidated principle of international law, as well as providing a set of rules and procedures to respect it. Thanks to this provision states were reassured that the agreement was not aimed at threatening their sovereignty or their interest, but only at curtailing transfer of weapons and resources to rebel groups.
This innovative approach, which brought together states, miners and the civil society, rapidly started to bear fruits, cracking the percentage of conflict diamonds in the market from as much as 15% to less than 0.2%. But failures to react to the violent government crackdown on illegal miners in Marange, which reportedly resulted in the death of 200 people, and the subsequent militarisation of the mining area, sparked intense debate on the role of the Kimberley Process. Members of the civil society, supported by several states, argued that the scheme should also be able to sanction infringement of human rights perpetrated by legitimate governments, as in the case of Zimbabwe.
Structural inadequacies
The real problem is that the Kimberley Process is structurally inadequate for the task of monitoring respect of human rights and sanctioning noncomplying states. For doing so, it would need a series of reforms so radical that would completely change its face. It would have to become a full-fledged permanent international organisation, rather than an intergovernmental body; it would need permanent personnel, analysts for monitoring data and statistics, investigators to be sent on field mission (often in hostile environments); it would need a judicial body to determine whether there has been a violation and to deal with the appeals from accused countries.
Such an organisation would suck up tens of millions of dollars in budget between wages, premises, benefits, missions. Considering that cash-strapped Western countries are substantially reducing financing of international organisations, would they seriously commit to those extra expenses?
Anything less than this would likely result in a failure and the rapid collapse of the whole agreement. But even imagining that all states parties somehow consented to make these concessions, they would still need to find an agreement on a fundamental question: how do we define “serious violations of human rights” in the diamond mining industry?
Human rights is a complex and non-univocal issue. Different geographical regions have different standards, and it is difficult to concile distant positions. Maybe it would be worth to clarify this point before pushing the matter further. But then, everyone in the world of diplomacy knows that there is no easy answer. The United Nations has been working on this issue since its creation 70 years ago, and the results have been less than satisfying. What are the odds for the Kimberley Process Plenary to do better than that?
The need for something different
So far the Kimberley Process has proved to be a valuable instrument in fighting conflict diamonds. That is because states, the civil society and the industry have set realistic goals, and conceded proper instruments to reach it. Amending this solid agreement with unrealistic promises could maybe serve short-term interest of some politicians, but it will eventually end with destroying the reputation of the Kimberley Process forever.
Saying that the Kimberley Process is structurally incapable of protecting human rights does not mean that this issue should not be a priority in the mining industry. But states and the civil society should refrain from projective excessive expectations on it, and concentrate their efforts into negotiating a different agreement to deal with violations of human rights. The new treaty should be signed under the direct framework of the United Nations and its human rights monitoring bodies. It should be legally binding, and enforceable.
It is also time to recognise that the matter of conflict resources applies today to a vast range of raw materials: gold, platinum, coltan, rubies, and many others. Due to a lack of international standards on the subject, states are implementing unilateral measures, such as the Dodd-Frank act in the USA and the upcoming mineral legislation in the European Union. As a result, the industry is facing a jungle of conflicting norms, which complicates global trade without effectively dealing with the problem. This issue is now so vast that only a broad and comprehensive agreement could bring some hope of success.
Yes, something needs to be done to improve the respect of human rights in the mining sector. But shattering the core structure of the Kimberley Process is not a good step in that direction.
Matteo Butera, Rough&Polished
