A conflict of diamonds: the Kimberley Process and Zimbabwe's Marange diamond fields.

• Author: Nichols, Julie Elizabeth

ABSTRACT

In 2003, the Kimberley Process Certification Scheme ("KPCS") entered into force as a novel approach to regulate the diamond industry and combat associated atrocities regarding "conflict diamonds." Fueled by the recent history of bloody civil wars, and graphically publicized slaughters and amputations by rebel groups funded by African diamonds, diamond-producing nations, the diamond industry's leaders and human rights groups created a process whereby "conflict diamonds" are identified and systematically excluded from the legitimate trade. However, the KPCS definition of "conflict diamond" has proved unacceptably restrictive. Diamonds from Zimbabwe's Marange fields are mined using systematic relocation, mass murdering campaigns and, recently discovered, torture camps. Yet, because Zimbabwe's "legitimate" government, not a rebel group, controls the Marange mines, the KPCS has certified these diamonds as conflict-free, fit for international trade. To stop this unacceptable situation, in which perpetrators of systematic and violent human rights abuses benefit from their crimes, the KPCS's definition of "conflict diamonds" must change. The diamond industry must support such a change by refusing to allow trade of any diamond mined through such systematic abuse. If these changes are not adopted, the United States must use all additional means, including legislative boycotts and civil suits, to stop the atrocities occurring today in Zimbabwe's Marange diamond fields.

Over the past few years, the world became quite familiar with the term "blood diamonds." Recent commercials proclaim diamond retailers who exclude the middleman offer better quality, less expensive stones that come with guarantees about their safe, blood-free origin. (1) When Valentine's Day comes around, sparkling stones with "Conflict-Free" certificates receive attention from the more conscientious consumers. Hollywood informed audiences about the atrocities of Sierra Leone's diamond-fueled civil war through Leonardo DiCaprio's 2006 movie Blood Diamond. (2) The movie ends with a conference of concerned parties seeking an end to the problem of blood diamonds. The film's conference is a reference to an actual meeting, which eventually led to the creation of the Kimberley Process Certification Scheme--and the "Conflict-Free" certificates that received so much positive attention. (3) The world knows now about blood diamonds and how countries have eliminated them from their stores--or so it appears on the surface.

Blood Diamond's final scenes depict the first meeting of what became the Kimberley Process ("KP"), the watchdog organization designed to prevent the sale of "conflict diamonds." The KP is a tri-branch organization, consisting of participating states ("Participants"), which make all official decisions, and representatives of both the diamond industry and of civil society--NGOs and activist groups--who serve as official observers. (4) The KP regulates aspects of the diamond industry through the Kimberley Process Certification Scheme ("KPCS"), (5) which is intended to eliminate conflict diamonds from the market while preserving the legitimate diamond trade. (6) The KPCS identifies and certifies rough diamonds that can legitimately enter the market. (7) It prohibits Participants from importing or exporting "conflict diamonds," which it very specifically defines, (8) and from trading any rough diamonds with non-participating states. (9) As more states join, fewer markets exist for conflict diamonds and, in theory, such stones will eventually no longer be sold at all. 10 In many ways, it has been very successful; conflict diamonds now make up less than one percent of all diamonds on the legitimate market. (11)

Yet that very specific definition of conflict diamond has caused a serious dilemma. According to the KPCS, "conflict diamonds" are "rough diamonds used by rebel movements or their allies to finance conflict aimed at undermining legitimate governments." (12) In Zimbabwe, there are no rebel movements campaigning to overthrow the government, therefore there can be no conflict diamonds in that country. However, diamond miners suffer gross human rights violations on a daily basis.

On August 8, 2011, the BBC program "Panorama" aired a documentary disclosing torture camps run by Zimbabwean police and military. (13) Witnesses described one camp, known as "Diamond Base," where police send miners who want a larger profit share or villagers caught mining for their families. (14) Men receive severe beatings three times a day and women are raped repeatedly. (15) Former paramilitary police officers describe handlers directing their dogs to maul prisoners and local doctors report frequently treating such wounds. (16) Apparently, these camps have been operating at least since late 2008. (17) Though this BBC documentary may have shocked the public, non-governmental organizations ("NGOs") that have been monitoring Zimbabwe's diamond mines for years were not even surprised. (18) They have been reporting similar human rights abuses since 2006. (19)

Thus, the situation in Zimbabwe brought the conflict diamond dilemma to a head: Zimbabwe is in compliance with the KPCS (20) and is yet responsible for gross human rights violations perpetrated for the sake of diamonds.

In response to Zimbabwe receiving official certification under the KPCS, the KP lost one of its most valued supporters. (21) In December 2011, Global Witness, an advocacy organization that helped establish the KPCS, left the coalition. (22) According to Annie Dunnebacke, senior campaigner for Global Witness, Zimbabwe is "the most egregious situation that we've seen since the Kimberley Process was launched, where diamonds have been fueling violence and human rights violations ... and the Kimberley Process has really failed to deal with that effectively." (23) A year earlier, Martin Rapaport, Chairman of the Rapaport Group and the associated Rapaport Diamond Trading Network ("RapNet"), which is the world's largest diamond trading network, made similar statements. (24) He called the KP a scam and told the public that relying on KP Certificates alone does not guarantee that such diamonds have not been associated with human rights abuses. (25) Between them, these groups assert powerful arguments that the KP cannot, or will not, appropriately face the new realities of conflict diamonds.

Is it time to give up on the KPCS? Does Global Witness's exit mark the end of a failed project? Or is abandoning the scheme altogether appropriate in light of its other successes? Regardless of how we answer those questions, the situation in Zimbabwe remains deeply troubling. Are these diamonds "conflict diamonds"? If not, are they not yet still covered in blood? Perhaps most importantly, notwithstanding the efficacy of the KPCS, what should the international community do with regard to these issues?

This article seeks to address these questions. The situation is extremely complex. Part I examines the KPCS in detail. It first looks at the historical context that led to the KPCS. Each branch of the KP diamond-producing states, representatives of the diamond industry, and human rights activists--wanted this regulatory scheme for different, sometimes competing, reasons. These reasons provide insight into the KPCS's current situation. Part I continues by examining the original structure and requirements of the KPCS (subsection B) and the additions and developments it has achieved since (subsection C). Finally, subsection D illustrates some of the KP's current statistics.

Part II describes Zimbabwe and its Marange diamond fields. Initially, subsection A provides a brief description of Zimbabwe's complicated political history. This background is important to understand arguments regarding the KPCS's relation to the Marange diamonds. Part II then provides a chronology of events related to Marange--starting with the discovery in 2006 and continuing through the present.

Part III illustrates the interactions between Zimbabwe and the KP since 2006. It provides a timeline of the KP's actions and decisions through the November 3, 2011 decision to certify Marange diamonds. Additionally, Part III describes two arguments illustrating how Zimbabwe violated the KPCS.

Part IV presents two currently proposed "solutions": to change elements of the KPCS so it can prohibit diamonds like those from Marange--diamonds that do not fit the definition of "conflict diamonds," but cause the same harms--or to abandon the KPCS altogether and take another route to regulate the diamond industry and prevent financial gain from blood-covered diamonds.

Finally, Part V provides a brief analysis and recommendations, and Part VI presents a conclusion. There is no simple answer to this complicated problem. However, abandoning a regulatory scheme that, with all its shortcomings, has successfully prevented certain illicit diamonds from entering the market seems irresponsible. Further, as the 2012 Chair, the United States ("U.S.") is now in a position to take a leading role and lead the KP in more constructive directions. The KPCS must learn from its own mistakes, observe other industries attempts to emulate it, and work with the diamond industry to establish additional workable compliance regulations. The KPCS failed to keep Marange diamonds off the market; yet that failure does not guarantee that it will inevitably fail forever.

PART I: THE KIMBERLEY PROCESS CERTIFICATION SCHEME

In 2003, the KPCS entered into force as a unique (26) approach to regulating the diamond industry and combating associated atrocities regarding "conflict diamonds." (27) Regulation of international industries --particularly the diamond industry, which has been notoriously "opaque"--is difficult and frequently unsuccessful. (28) However, at that particular time, with those particular players, everyone agreed on a regulatory scheme. They made compromises and though details...