The Forgotten Million: Assessing International Human Rights Abuses in the Artisanal Diamond Mining Industry

• Author: Gretchen A. Vetter
• Position: J.D. anticipated May 2007, The University of Iowa College of Law
• Pages: 734-768

The Forgotten Million:¹ Assessing International Human Rights Abuses in the Artisanal Diamond Mining Industry

Page 734

I Introduction

[T]he diamond industry itself is little more than a concept. At one end of the scale is the Tiffany showroom, where the diamond is a glittering symbol of love, purity, wealth and eternity-here diamonds are forever. At the other end of the scale are diamonds that come and go with lighteningPage 735 speed. In Africa where sixty-five percent of the world's diamonds, by value, are mined, the industry is characterized on the one hand by a few gigantic, well-fenced holes in the ground, and on the other by hundreds of thousand of diggers, known variously as gareimpeiros in Angola, creuseurs in the Congo and Central African Republic, and san-san boys in Sierra Leone.²

Conflict diamonds have plagued numerous African countries, including Angola, Sierra Leone, and the Democratic Republic of the Congo (DRC), in recent decades and continue to pose problems for sustainable development in these countries. In 2003, the international community finally responded with the Kimberley Process Certification Scheme (KPCS)³, which was developed to create an international regulatory system for the diamond industry. Specifically, it was created to help ensure that only "legitimate" (i.e., non-conflict) diamonds enter retail markets. The KPCS, however, has failed to effectively address the problems involved with small-scale artisanal miners. Although the KPCS addresses export and import certification, it leaves a gap in the regulation of the industry-the so-called "earth to export" gap.

Consequently, domestic governments continue to struggle in the regulation of the artisanal diamond industry. Their practices and policies regarding the industry, aside from export and import controls imposed by the KPCS, remain virtually unchecked by the international community. For example, Angola continues to encounter human rights issues with its attempts to regulate the diamond industry. In particular, the Angolan government has caused and continues to cause violations of human rights in its attempts to regulate the country's small-scale artisanal diamond industry.

This Note analyzes the implications of the lack of effective international regulations in the small-scale diamond mining industry, and looks particularly at the Angolan government's failed attempts to internally regulate the industry. By examining a handful of the many human rights issues intertwined with the small-scale diamond industry, the purpose of this Note is to convey to the reader the specific consequences on human rights of the current system and the need for reform. Specifically, this note will address: 1) the lack of freedom of movement in the current Angolan system; 2) labor conditions for AngolanPage 736 artisanal miners; and 3) violence against foreign miners sanctioned by the Angolan Government.⁴

Further, the Note examines the aforementioned KPCS, along with a new initiative introduced by the international community entitled the "Diamond Development Initiative" (DDI), which focuses specifically on the plight of the artisanal diamond industry. Lastly, this Note urges the international community, including governments, non-governmental organizations (NGOs), and the diamond industry, to reconsider the definition of conflict diamonds and to put forth serious efforts, both on a micro and macro level, to implement change and promote transparency in the small-scale artisanal diamond mining industry in order to address human rights issues.

II Background

A The "New" Conflict Diamond

Conflict diamonds are currently defined as "diamonds that originate from areas controlled by forces or factions opposed to legitimate and internationally recognized governments, and are used to fund military action in opposition to those governments, or in contravention of the decisions of the [United Nations] Security Council."⁵ The term "conflict diamond" was originally coined to represent the human rights abuses that were perpetuated in the diamond industry by rebel groups in their attempts to attain power in the government (usually by attempting to overthrow incumbents).⁶ Although the official wars in these African countries have, for the most part, ceased, there remains a grave humanitarian crisis in the diamond industry. The international community should not ignore these human rights abuses in the diamondPage 737 industry simply because civil wars no longer plague the majority of these countries. Although the wars have ended, diamonds continue to be a valuable commodity for trade because they are "easily concealed and transported, are mined in remote areas worldwide, and are virtually untraceable to their original source."⁷ Further, diamonds continue to be used "in lieu of currency in arms deals, money laundering, and other crime,"⁸ including terrorism.

Some commentators suggest, and this Note advocates, that the term conflict diamond should be expanded to include "all those gems that come from areas where mining is based on the systematic violation of human rights."⁹ The expanded definition recognizes that human rights abuses continue to be perpetrated within the industry, despite the fact that the civil wars in most of the previously-afflicted African countries have ceased. Incorporating a broader definition of conflict diamonds into working language will hopefully draw more international attention to the human rights abuses that continue within the industry.¹⁰

B Conflict Diamonds and Angola: a Troubled History

Angola achieved independence from Portugal on November 11, 1975. Angola's independence was a victory for the African liberation movementPage 738 and was also "a pledge to millions further south on the continent that the liberation of the rest of Africa was possible."¹¹ The battle for Angolan sovereignty was fought largely by guerillas-men and women-and contributed to a new mood of confidence that infiltrated the developing world around the same time.¹²

The struggle for power involved three nationalist groups: Movimiento Popular de Libertacao de Angola (MPLA) (this group won military victory and is now referred to as the party in control); Frente Nacional de Libertacao de Angola (FNLA); and Uniao Nacional para la Independencia Total de Angola (UNITA).¹³ The MPLA, backed by the Soviet Bloc, seized rule in 1975.¹⁴ UNITA, backed by South Africa and the United States, also sought power.¹⁵ Eventually, the FNLA gave up its fight, leaving UNITA and MPLA to vie for power.¹⁶ The post-independent Angola was figuratively "split in two."¹⁷

During this time, the ownership of Angola's natural resources was divided between the two groups. The MPLA controlled the nation's oil while UNITA controlled the diamond resources.¹⁸ At the end of the Cold War in 1989, the Soviets and the United States ceased their aid to thesePage 739 groups. Soon thereafter, the MPLA's and UNITA's control over oil and diamonds, respectively, became even more important as a funding source in their struggle against each other for power.¹⁹

In 1991, the seemingly endless war was supposed to come to an end with the signing of a peace agreement between the MPLA and UNITA. However, after the MPLA won power in U.N.-monitored elections in 1992,²⁰ UNITA leader Jonas Savimbi claimed that UNITA had been cheated out of power.²¹ UNITA reignited the civil war that plagued Angola prior to the elections. To finance their cause, UNITA again looked to the diamond industry.²²

In the early-to-mid 1990s, the U.N. Security Council (UNSC) issued several resolutions designed to monitor and sanction UNITA.²³ UNSC Resolution 1173,²⁴ issued in June 1998, marked the world's first recognition of the role of diamonds in fuelling conflict.²⁵ "The U.N.'s acknowledgment...