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Summary of Mechanisms Employed by the International Community

Human rights are becoming an increasingly globalised concept. In today’s society, we see that many supranational organisations are implementing universal measures and standards of human rights so as to ensure that no person is disadvantaged on the basis of their race, creed or religious beliefs, among other things. However, international experience has showed us that the existence of these international mechanisms does not necessarily amount to a safeguard against human rights breaches. More often than not, these organisations can only intervene in certain prescribed circumstances. This purpose of this chapter is to highlight these mechanisms, and comment on their overall effectiveness in relation to conflict diamonds in Angola, Sierra Leone and the Democratic Republic of Congo.

Perhaps one of the most recognised supranational organisations is the United Nations. The UN has a number of different branches within its organisation; however the one that appears to bear the brunt of the UN’s international power would have to be the Security Council. The Security Council’s main operative provision reads:

In order to ensure prompt and effective action by the United Nations its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

This demonstrates that the Security Council’s primary aim is to maintain international peace and security. This presents an interesting dilemma in the context of Angola, Sierra Leone and DRC, given that a majority of disputes arising as a result of conflict diamonds generally involve intra-state parties; that is, the dispute does not extend beyond national borders, but for the fact it seems to replicate itself in the three abovementioned states. This is evident from the 1960 conflict in Congo, which involved the UN Security Council establishing a collective force to pacify the Belgian resistance and assist the establishment of an independent democratic Congo government. There is also evidence of a UN presence in Angola in the early 1990s; however the effectiveness of this mission is questionable, given that not a single diamond was intercepted after the UN implemented sanctions in Angola.

Given that the effectiveness of the UN was questionable in relation to conflict diamonds, it is clear that another method would be necessary. As a result of the UN’s failings, non-government organisations started to take the lead in this field. The London-based NGO called ‘Global Witness’ attempted to bring the issue of conflict diamonds into the public arena and make consumers aware of the human rights abuses that were resulting from the production of these diamonds in Angola, Sierra Leone and DRC. Global Witness openly spruiked its aim as an attempt at “knocking the wind out of the $6 billion-per-year diamond industry by revealing its deepest and darkest secret”. This meant that rather than addressing the problem by force, Global Witness endeavoured to allow the international community to vote with its feet, so to speak, and not purchase diamonds that were produced under processes which resulted in human rights breaches in these countries. This is perhaps similar to the anti-Nike and child labour movement that has developed in recent years, where consumers are encouraged to avoid products that involve child labour, resulting in fundamental human rights breaches in some Asian countries.

Other reports have been published in relation to conflict diamonds, including the Rough Trade report, however it would appear that these only served to highlight the problem in these countries, rather than take a practical approach to fixing it. Therefore, while the UN model was not effective in a practical sense, it was the only practical option that has been put forward and thus one should reserve criticism of the UN in relation to conflict diamonds until evidence exists that a better option exists. The Global Witness approach cannot be seen to be effective at this time, given that the problem is still in epidemic proportions however; it more than likely is contributing to the overall cause which may eventually bring down breaches of human rights in relation to conflict diamonds.

Holding Former Rebel Leaders to Account

Special Court for Sierra Leone

There appears to be a mechanism which allows States and international organisations to co-operate and work together in an attempt to stamp out the blatant breaches of fundamental human rights which tend to stem from conflict diamonds. The following is one of the main rationales behind the establishment of the Special Court for Sierra Leone:

The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.

This court therefore has the jurisdiction to deal with not only Sierra Leonean law, but also incorporates international standards and benchmarks of human rights law, such as the UN Convention on Human Rights, for example. Articles 3-5 of the Statute of the Special Court of Sierra Leone outline the various crimes that the Court has the competence to hear, which include murder, the taking of hostages, and the conscription of children aged less than 15 years into armed forces, among other things of course.

The question is, has this court been effective in its endeavours? Some would argue yes, in the sense that it has the jurisdiction to have ten of the most serious violators of human rights in Sierra Leone before it at this point. However, one should also note that the budget of the court is not huge when compared to other special courts, such as the ICTY and ICTR, which have budgets of around US$120 million as opposed to the meagre US$25 million that the Special Court has at its disposal. This is through no negligence on the part of the Sierra Leonean government, which contributes substantial amounts of money towards the funding of this court. This means that trials can take a substantial amount of time due to the stretching of finances, which brings its overall effectiveness into question.

International Criminal Court

The International Criminal Court is another court which is overseen by the United Nations, however unlike the Special Court for Sierra Leone; the ICC is effectively a branch of the UN rather than the result of cooperation with the States. The ICC is predominantly governed by its Statute, which is colloquially referred to as the Rome Statute, after where it was enacted. Generally, the ICC has only specific jurisdiction in relation to matters which the Statute gives it the jurisdiction to hear. For example, the ICC is only competent to hear a matter where that person has not been tried in a national court (pursuant to a few limited exceptions), and where the person committing the crime is a national of a contracting party to the Convention (or where the crime is committed within a State party territory).

This limited jurisdiction questions the effectiveness of the ICC in relation to conflict diamonds in Sierra Leone, Angola and DRC, in the sense that the crimes defined by the Rome Statute do not expressly cover breaches of human rights. They only tend to cover four broad categories, including genocide, war crimes, crimes against humanity and crimes of aggression. These are seen as the most “serious crimes of concern to the international community as a whole”. However, this can certainly lead to prosecution for these types of crimes, but other courts (including national courts or other special courts) may be a more appropriate forum.

Those Who Have Been Tried So Far

Currently, there are three persons from the Democratic Republic of Congo awaiting trial before the International Criminal Court: Thomas Lubanga, Germain Katunga and Mathieu Ngudjolo Chui. Lubanga is charged with deliberately conscripting children into rebel armed forces, whereas Katunga and Chui are each charged with six counts of war crimes and three counts of crimes against humanity relating to an attack on a village in Bogoro in 2003.

Are Diamonds Now Conflict-Free?

The definition of conflict-free diamonds is in fact quite broad and far-reaching. The Conflict-Free Diamond Council, an advocacy group in support of conflict-free diamonds, defines them as being conflict-free if “its profit is not used to fund war, and it is mined and produced under ethical conditions”. This gives scope for quite a liberal interpretation, and does not specifically purport to promote coherence with rigid standards of human rights. For instance, to what standard does this definition serve to protect people against harsh labour conditions? To international standards, such as the UN Convention on Human Rights? Or to those standards prescribed by domestic law? It is difficult to judge on this issue.

There is also discussion which suggests that the Kimberley Process does not go the whole way in promoting conflict-free diamonds, and it tends to not pay close enough attention to individual diamonds, rather it focuses on bulk quantities. This is evidenced by the following passage:

The Scheme currently does not provide for an independent monitoring system to ensure that each nation actually complies with the regulations and suggestions of the KPCS. Global Witness, a leading NGO, has argued that certifying parcels of gemstones as conflict-free is not enough supervision. They assert that without an independent monitoring and supervisory agency institutionalized to oversee the conduct and business practices of the diamond industry, ample opportunities for corruption and diamond laundering exist. In addition, they worry that “the use of the proceeds from such activities [will] continue to fund the purchase of arms for rebel militias to unleash their reign of terror on the citizens of war-devastated African countries.”

This passage highlights a key problem with the current system. The Kimberley Process, a co-operative set of standards and principles agreed upon by the governments of various States globally, does not currently provide that an independent supervisory body be appointed to issue these certificates. Rather, this responsibility generally falls upon the relevant domestic government to enforce and administrate. This is still allowing opportunities, as was stated above, for corruption to exist which would in turn allow for profits from the export of these diamonds to flow back to those whom the Kimberley Process intends to bankrupt, thus defeating the whole purpose of the Kimberley Process in any case.

In summary then, it would appear that it is in fact unascertainable as to whether diamonds in Angola, Sierra Leone and Democratic Republic of Congo are now conflict-free, as the standards which are set in order to gauge this are too vague, as well as there being evidence of flouting the system designed to reduce the production of conflict diamonds. Therefore, there is every chance that the problem of conflict diamonds exists in similar quantities as it did before, however there is no disputing the fact that the pressure placed on the problem by domestic and international organizations is having some sort of effect, and is placing downward pressure conflict diamonds.

The Current Position

Angola

The situation which currently exists in Angola in relation to conflict diamonds is not one which is overly stable. It is perhaps best summed up as follows:

The UN has played a major role in orchestrating peace processes throughout Central Africa. UNSC Resolution 1173 initiated the first substantive action regarding Central African peace by officially recognizing diamonds as fuelling Angolan violence and prohibiting the importation of Angolan diamonds not harvested in government-controlled mines. While this Resolution did little to stop the flow of conflict diamonds, a UN-backed cease-fire agreement in 2002 signalled an end for UNITA and, thus, for Angolan conflict diamonds. The situation in Angola remains fragile, however, and the government faces a constant threat from various rebel factions still loyal to UNITA's ideals.

Therefore, the situation in Angola is difficult to address in the sense that there is an obvious need to prevent the flow of conflict diamonds out of Angola, but there is also a need to tread lightly in regards to the political process, and there is every chance that rebels could engage in an uprising, which would serve benefit to no one.

Sierra Leone

The World Diamond Council, a leading advocacy group on the issue of conflict diamonds, describes the current situation in Sierra Leone in the following manner:

Sierra Leone is now at peace. Its next national election will take place in 2007. Today, diamonds represent a resource of crucial importance to the future development of the country. Sierra Leone continues to be a participant of the Kimberley Process and exported approximately $142 million worth of diamonds (approximately 3% of the world's diamonds) in 2005. Revenues from diamond exports are making a positive contribution to the rebuilding of its infrastructure, health services and education systems.

This previous passage by the WDC highlights the fact that it would be difficult for the diamond trade in Sierra Leone to cease completely, and thus the most appropriate solution would be to work within the existing framework in an attempt to stamp out human rights breaches and make the diamond trade one that benefits Sierra Leone’s economy. The Kimberley Process that the WDC refers to is the process that has been put in place by various domestic and international bodies which ensures that the diamond trade is one that is just and equitable, as well as beneficial, to all parties concerned. The Kimberley Process is best described as a “negotiating scheme to implement a global certification system for the import and export of diamonds”.

In summary, the current scenario in Sierra Leone has improved quite drastically, but this is not to say that every solution is foolproof, as even the Kimberley Process has its flaws. However, at least it appears as though the diamond trade is now making positive contributions to the economy and stability of Sierra Leone, rather than impacting on the rights and benefits of the community at large.

Democratic Republic of Congo

As above, the WDC describes the current situation in the Democratic Republic of Congo as quite peaceful:

Elections to form a new government took place in July 2006. This election was the first fully democratic vote in the country in more than 40 years. The economy is expected to improve following the installation of the new government.

Today, international monitoring has demonstrated that diamonds are no longer being used to fund conflict in the DRC. The end of the war in 1999 led to a resurgence of the mining industry, which accounts for most of the Democratic Republic of Congo's exports. The DRC is a participant of the Kimberley Process and currently produces approximately 8% of the world's diamonds.

Therefore, the DRC is a benchmark for how the Kimberley Process and drastic domestic and international reform can play a significant role in changing the impact that the diamond industry can have on the DRC economy. No longer do we see the conflict arising from human rights abuses in the diamond trade, but we rather see a well-regulated and efficient industry which is a valuable source of revenue. Additionally, the fact that the government now plays an active role in the diamond trade, due to its now democratic structure and values, contributes significantly to this.

Are Diamonds the Substantial Causes of Human Rights Abuses in these Countries?

This brief has consistently discussed the issue that conflict diamonds play in Angola, Sierra Leone and the Democratic Republic of Congo. However, it is also important to address whether conflict diamonds are the main cause of human rights breaches in these countries. There is little to suggest that diamonds do not play a substantial part of these human rights breaches, as the profits generally flow back to rebel groups who, in turn, promote ideas and values which encourage the production of conflict diamonds.

In the DRC especially, there is literature to support the fact that diamonds are involved in most human rights violations:

In 2000, recognizing the link between natural resource plundering and gross human-rights violations in the DRC, the U.N. established a Panel of Experts to investigate the exploitation of the DRC's natural resources. The Panel published four reports between 2000 and 2003. These reports documented evidence that the countries participating in the war were systematically stealing the DRC's natural resources and selling them for profit. The report ultimately concluded that “there is a clear link between the continuation of the conflict and the exploitation of natural resources.”

This passage clearly highlights the link between exploitation of natural resources and human rights breaches: they are essentially interrelated. This has been recognized by the UN that external countries essentially rape and pillage the natural resources of DRC, and its people therein, in order to produce proceeds that would directly fund their civil war efforts.

There is also recognition of the fact that conflict diamonds contribute to human rights breaches in the legislation governing the Kimberley Process. Specifically:

The KP legislation, however, poses a more tenuous link between the actual goods, rough diamonds, and the activity the regulation is intending to prohibit- in this case, the human rights violations of war and the illegal funding of war criminals. In other words, the actual goods being regulated by the KP include goods that do not necessarily coincide with the aims of the KP. All rough diamonds are restricted, including rough diamonds that do not originate from rebel-held territories but, for whatever reason, do not carry a certificate of origin with them. In that sense, and unlike the child labour legislation, the KP exception based on XX(b) [of the Kimberley Process legislation] could be considered overbroad. However, because there has been such strong international support for the KP, and clear indications that conflict diamonds are related to human rights violations, it is unlikely the exception based on a morality determination that challenges restrictive legislation made in compliance with the KP will be challenged.

Essentially, the above passage is stating that while the legislation of the Kimberley Process can be considered vague and broad, which might encourage circumvention, it is well equipped to address issues of human rights breaches. While it generally embraces more subject matter than is necessary in terms of regulating conflict diamonds, the fact is it certainly covers this issue, and uses its best endeavours to address it. The efficiency of the Kimberley Process is a debate for another time however, for the purposes of this brief, it is ascertainable that human rights breaches in Angola, Sierra Leone and Democratic Republic of Congo are generally attributable to the production of conflict diamonds.

Conclusion

In summary, this brief has addressed the issue of conflict diamonds in Angola, Sierra Leone and Democratic Republic of Congo. It is abundantly clear that the problem is widespread, and a resolution is most definitely not a cut-and-dry solution. The rules and principles that are in place to attempt to remedy the situation are certainly playing some role, but the problem seeps deep into the social and political fabric of these countries, and there is probably a need to revise the political framework of these countries on a domestic level in order to effect a resolution on an international scale. There is evidence of such political reform having effect in DRC, through a push in democratic ideals and a valuation of the contribution of the labour force to economic prosperity, hence the situation in DRC in much more peaceful. Perhaps this will work on a larger scale, or perhaps it won’t. However one thing is certain, something more needs to be done to allow the reforms that are currently in place to have maximum impact on the parties concerned.

Bibliography

Legislation

• Kimberley Process Legislation
• Rome Statute of the International Criminal Court
• Statute of the Special Court for Sierra Leone
• UN Charter
• UN Convention on Human Rights
• UN Security Council Resolution 143
• UN Security Council Resolution 626

Journals

• Fishman, J.L., ‘Is Diamond Smuggling Forever? The Kimberley Process Certification Scheme: The First Step Down the Long Road to Solving the Blood Diamond Trade Problem’ (2005) 13 University of Miami Business Law Review 217
• Fleshman, M., ‘Conflict Diamonds Evade UN Sanctions’ 14(4) Africa Recovery 15
• Kaplan, M., ‘Carats and Sticks: Pursuing War and Peace Through the Diamond Trade’ (2003) 35 New York University Journal of International Law and Politics 559
• Malmut, A., ‘A Band-aid on a Machete Wound: The Failures of the Kimberley Process and Diamond-Caused Bloodshed in the Democratic Republic of Congo’ (2005) 29 Suffolk Transnational Law Review 25
• Price, M., ‘The Kimberley Process: Conflict Diamonds, WTO Obligations and the Universality Debate’ (2003) 12 Minnesota Journal of Global Trade 1
• Woody, K.E., ‘Diamonds on the Souls of Her Shoes: The Kimberley Process and the Morality Exception to WTO Restrictions’ (2007) 22 Connecticut Journal of International Law 335

Other Sources

• Global Witness (2008) ‘Combating Conflict Diamonds’ <http://www.globalwitness.org/pages/en/conflict_diamonds.html> at 25 March 2008
• International Centre for Transitional Justice ‘The Special Court for Sierra Leone Under Scrutiny’ (2006), 29, available at <http://www.ictj.org/static/Prosecutions/Sierra.study.pdf> at 26 March 2008
• International Criminal Court, ‘First Arrest for the International Criminal Court’ (2006) <http://www.icc-cpi.int/pressrelease_details&id=132.html> at 26 March 2008
• International Criminal Court, ‘Warrant of Arrest for Germain Katunga’ (2007) <http://www.icc-cpi.int/library/cases/ICC-01-04-01-07-1_tEnglish.pdf> at 26 March 2008
• International Criminal Court, ‘Warrant of Arrest of Mathieu Ngudjolo Chui’ (2007) <http://www.icc-cpi.int/library/cases/ICC-01-04-02-07-1-tENG.pdf> at 26 March 2008
• J. Smith, Conflict Diamonds: Resolving Africa’s Worst Resource Wars. Available at <http://pwr.stanford.edu/publications/Boothe_0304/PWR%20Smith.pdf> at 25 March 2008
• Special Court for Sierra Leone, ‘About the Special Court for Sierra Leone’ (2008) <http://www.sc-sl.org/about.html> at 26 March 2008
• The Conflict-Free Diamond Council, ‘What is a Conflict-Free Diamond?” (2004) <http://www.conflictfreediamonds.org/awareness/conflict_free_diamonds.html> at 28 March 2008
• The Kimberley Process <http://www.kimberleyprocess.com> at 28 March 2008

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