55. Ineffectiveness Of The Kimberly Process In The Fight Against Diamond Abuses

Author: Blaire Davidowitz, 3 Year Law

1. CONFLICT DIAMONDS AND THE KIMBERLEY PROCESS


“Diamonds are forever, it is often said, but lives are not. We must spare people the ordeal of war, mutilations and death for the sake of conflict diamonds.”  This quote by the Chairman of the Sierra Leone panel of experts attempts to articulate the gravity of the atrocities surrounding conflict diamonds,  “rough diamonds used by rebel movements to finance wars aimed against legitimate governments.” 


As of 2003, around 3.7 million innocent people had lost their lives to the war over conflict diamonds, a number that would rise to over four million people just three years later.  In addition, upwards of 6.5 million people had been forced from their homes in Angola, Sierra Leone, and the Democratic Republic of the Congo in wars over control of the mining zones; additionally, conflict diamond trade earned near “$300 million a year.  In 2003, with a push from the United Nations (UN), various nations around the world adopted the Kimberley Process Certification Scheme (“KP”).   The KP safeguards against rough diamonds being imported or exported without a special certificate certifying that the diamonds are conflict free.  In many respects, the KP has lessoned the conflict diamond problem; for instance, at the height of the issue, conflict diamond trade made up as much as 15% of the international trade of diamonds. Now, conflict diamonds make up only a “fraction of [1%].”  However, the “real impact of conflict diamonds” may be much higher since much of the conflict diamond trade is unaccounted for or impossible to determine due to its breadth.  The KP “[s]tatisitcs fail to illustrate the human cost of wars in which millions of lives have been lost . . . and do not account for the illicit diamond trade, that “represent up to 20% of global trade.”


However, despite the KP’s apparent success in international diamond trade, the scheme likely does not operate at its maximum capability.  This paper will be divided into three sections that support the need for reforming the KP. First, the KP itself will be explained; next, the paper will shift its focus to the KP’s failures, specifically those flaws stemming from the restrictive nature of the narrow conflict diamond definition. The final section will address the necessity of restructuring the KP and highlights what these changes may entail.


2. KIMBERLEY PROCESS EXPLAINED


A. Timeline
The idea for the KP was generated in May 2000 “when Southern African diamond-producing states met in Kimberley, South Africa.”  These diamond producer states had seen the “devastation caused by diamond-fueled wars and wanted to find a politically acceptable end” to remedy the concern.  At this meeting, the states discussed issues revolving around conflict diamonds and aimed to find “ways to stop the trade in [conflict diamonds] and ensure that diamond purchases were not financing violence by rebel movements and their allies seeking to undermine legitimate governments.”  In December 2000, the United Nations General Assembly (“UN”) agreed on the significance of adopting an “international certification scheme for rough diamonds,” and in November 2002, the KP document was born.  


In 2003, with the help of the UN, nations around the world started adopting the KP.  Currently, the KP has 54 Participants, representing 80 countries, with the European Union and its Member States only counting as a single Participant.”  There is also room to grow since any country or territory is permitted to become a KP Participant, or a “state or a regional economic integration organisation (sic) for which the Certification Scheme is effective,” so long it abides by certain requirements detailed below.


B. Legislation
The KP is defined as “a joint governments, industry and civil society initiative to stem the flow of conflict diamonds – rough diamonds used by rebel movements to finance wars against legitimate governments.”   The KP involves “special requirements for controlling rough diamond production and trade.”


The KP scheme covers various spectrums of the rough diamond supply chain and is intended to allow the diamond cutters, jewelers, jewelry stores, or even end buyers, know where their rough diamond purchases originated.   To this end, each Participant is required to confirm that the requisite KP Certificate “accompanies each shipment of rough diamonds on export.”  This certificate is a “forgery resistant document with a particular format which identifies a shipment of rough diamonds as being in compliance with the requirements of the Certification Scheme,” and helps consumers verify that their rough diamond purchase has not been a source from conflict.   The KP drafters hoped that by making consumers aware of where their rough diamonds originated, consumers would “choose to buy diamonds mined legally, with profits flowing to legitimate sources of power.” 


Additionally, the KP also specifies that Participants should make sure that no rough diamonds are imported or exported to any non-KP participant, and that once a diamond is transported, “confirmation of receipt is sent expeditiously to the relevant Authority.”   There are also “internal controls” that each country must undertake in order to be a KP Participant; for instance, Participants must “establish a system of internal controls designed to eliminate the presence of conflict diamonds” from a Participant’s imports and exports.  In 2003, America established its own system of internal controls that is referred to as the Clean Diamond Trade Act (CDTA). 


The KP requires and the CDTA ensures that any rough diamonds being imported into the country or exported out have the requisite certificate and meet certain “standards” and “practices.”  For instance, KP Participants are required to “designate an Importing and an Exporting Authority,” which are Participant appointed bodies that “authorize and validate” KP certificates for exporting rough diamonds and also guarantees that “all import formalities” are met.  Such formalities include verifying KP certificates, confirming that all “rough diamonds are imported and exported in tamper resistant containers,” and keep and exchange accurate import and export records.  Reportedly, the KP’s strict rules have significantly reduced the percentage of conflict diamonds being traded internationally.  However, despite what seems to be a significant impact, the statistics fail to tell the whole story.


3. KIMBERLEY PROCESS PROBLEMS


Where the KP specifically sets out to lessen the harms involving international trade of rough and/or conflict diamonds, other spheres, such as those dealing with blood diamonds and conflict minerals, are left virtually untouched.  The KP only covers conflict diamonds, or those rough diamonds that are directly linked to stimulating armed conflicts by rebel groups attempting to destabilize legitimate governments.  The conflict diamond definition proves to be overly restrictive and narrow for three reasons; first, the KP’s definition of conflict diamonds only includes rough diamonds.  Second, trading is limited to Participants; and third, the KP avoids other human rights abuses that occur alongside diamonds, and even minerals, by limiting itself to only one human rights violation.  These problems signal the KP’s ineffectiveness and lead to the conclusion that perhaps the current layout of KP is not the best vehicle to guarantee an end to the human rights violations saturating the diamond, and even the conflict mineral, industry. 


A. Rough Diamond
Possibly the most troubling aspect of the KP’s definition of conflict-diamonds is that it only covers rough diamonds, not all diamonds.  “Rough diamonds” are “diamonds that are unworked or simply sawn, cleaved, or bruted and fall under the Relevant Harmonised (sic) Commodity Description and Coding System 7102.10, 7102.21, or 7102.31.”  Essentially, this is an uncut and unpolished diamond, or rather, a diamond directly out of the mine.  In centering on rough diamonds, other varieties of diamonds, like polished diamonds, escape the KP’s grasp. The fact that non-rough diamonds escape the KP’s attention invites smuggling and/or illegal diamond purchases.  Once illegally acquired, it could be easy to get those rough stones polished, set, and traded without having to worry about the KP certificates being in the way.  Essentially, a loophole is available to those who wish to bypass the KP’s rules; unfortunately, this raises questions as to the KP’s overall effectiveness.


With a loophole in place, smugglers have a device for transporting their rough diamonds internationally and may entirely avoid KP regulations entirely. Once a thief or rebel’s unclean (another name for diamonds inundated with violations) yet polished diamonds reach international commerce, their origins are no longer scrutinized.  It does not matter if a diamond contributed to 100 deaths; once the diamond is polished, Participants may import them free of KP consequences.


B. Participant Trading
The KP only applies to those diamonds that cross borders.  The KP defines “import[ing]” as the material “entering [or] bringing into” a Participant’s “geographical territory.”  Likewise, “export[ing]” refers to diamonds leaving the “geographical territory of a [KP] Participant.”  Unlike Participants, non-Participants are not required to abide by the KP’s rules since the KP is “neither treaty nor law.”  The KP attempts to avoid potential trading between non-Participants and Participants by sanctioning the two from trading with each other.  However, this rule only makes it harder for rebels to find a way to place their diamonds into commerce, it does not, however, make it impossible. The fact that non-Participants and rebels still find ways to trade with Participants highlights a disturbing KP flaw; if a diamond can easily be traded within a border and non-Participants are not specifically barred from importing and exporting rough diamonds, nothing is keeping a rebel force in Angola, for example, from unlawfully obtaining a diamond, getting it polished, and then transferring it to a Participant. With a method in order to place unclean diamonds into international commerce without violating the KP, the effectiveness of the territorial limitations is drastically reduced.


Another problem lies in the fact that rebels or smugglers are not wholly deterred from using conflict diamonds to their advantage. These conflict-diamond smugglers create an issue because they are likely not law-abiding citizens and without an effective deterrent, which the KP has yet to create given by the fact that conflict diamonds are still smuggled, they will continue to break the law and use these diamonds to their benefit.  With each passing day, smugglers edge closer to finding new ways around the system; essentially, the KP does not prevent Participants from trading outside of their boundaries.


Another issue of restricting trade to only those rough diamonds traded internationally is that inter-border trade is left exposed, even to Participants. Consequently, if rebel groups or Participants get their hands on conflict-diamonds, they could technically falsify an invoice and sell the diamonds within their country.  Venezuela exports hundreds of millions of diamond carats each year with counterfeit KP certificates; once these scammers obtain false certificates, they can transport the diamonds into Participant countries like India, China, Israel, or the United States (“U.S.”) without any KP repercussion.  Essentially, once a diamond is processed, i.e. cut and polished, or given an illegitimate certificate, “its origins are effectively disguised.” 
C. Legitimate Governments & Other Human Rights Issues


The KP only protects against diamonds that are “aimed at undermining legitimate governments,” or lawful governments that are internationally recognized.  Limiting the KP to forces against legitimate government creates two issues; first, it discounts the legitimate governments that are actually the cause of human rights violations surrounding conflict diamonds, and second, it confines the kinds of human rights violations or abuses the KP can successfully regulate.


a) Legitimate Yet Corrupt Governments
The KP fails to recognize instances where legitimate governments, and not the rebel forces against them, use diamonds in a corrupt manner. Rather, the KP only identifies one certain type of human rights violation, e.g. those that  “[undermine] legitimate governments.”  Limiting protections to such a strict variety of abuses probably shields legitimate governments from ever being capable of violating the KP; it makes legitimate governments untouchable. Two influential groups, “Global Witness and RapNet” took notice to this issue and went to the public announcing that it was time to move beyond the KP.   Participants and organizations are upset with human rights violations caused by governments, especially those committed by Zimbabwe’s legitimate government. 


There are four main mining companies in Zimbabwe, which include, “Marange, Mbada, Anjin, and DMC.”  Of the four main mining companies in Zimbabwe, all “have been KP certified to sell their diamonds on the international market.”  Zimbabwe’s legitimate government owns one such mine, the Marange fields, and abuses its miners by sending them to “torture camps” to sustain horrendous punishments including whipping (sometimes 120 lashes in one day), dog mauling, “mock-drowning,” beatings, sexual assault, rape, and more.  In 2008, Zimbabwe’s government controlled military killed 200 civilians “during a struggle for control.”  If anti-government rebels were running the Marange fields and funding conflict with its proceeds, the KP would ban the diamonds from Participant trade.  However, since a legitimate government controls Marange, the KP cannot protect civilians from the government’s abuses without further action.  The KP would not have jurisdiction to keep the diamonds away from Participants even if the government used the diamond funds to finance conflict; this is a problem.


In 2009, the KP briefly suspended Marange diamonds “following reports of large-scale killings and abuse by Zimbabwe’s security forces in the Marange diamond fields.”  However, in 2011 the ban was lifted despite an investigation “confirm[ing] serious human rights abuses and rampant smuggling at the Marange fields.   Zimbabwe and its Marange fields are a hot issue in current international human rights; following the 2011 ban lift, major KP players started to disassociate from the KP.

 
b) Human Rights Violations
The KP will only offer coverage to rough diamonds being used by rebels to fund conflict against a legitimate government; therefore, many human rights violations surrounding certain diamonds (and all conflict minerals) are left untouched.   Because the KP is restricted in the choice of human rights violations that it may shield, many human rights abuses, like those entangled with blood diamonds and conflict minerals, are unsheltered.


i. Unprotected Diamonds: Blood Diamonds
Unlike conflict diamonds, blood diamonds cover a much broader range of diamonds, a range that even includes conflict diamonds.  Where conflict diamonds only include rough diamonds used against the legitimate government, blood diamonds can be “involved in murder, mutilation, rape or forced servitude.”   Blood diamonds can be differentiated even further to include “violence, worker exploitation, and environmental degradation.”  The KP indeed limits its reach using its current conflict diamond definition because it can only intervene under very particular circumstances. 


Marange diamonds are once again the perfect example of why the conflict diamond definition fails. Even though the KP aims to protect against diamond abuses aimed at legitimate governments, the scheme simply fails to realize that sometimes, as in the case of the Marange fields, the government’s presence in the diamond industry may “violate human rights.”  Had the KP applied to all blood diamonds, as opposed to only conflict diamonds, it might have been able to restrict Zimbabwe from trading Marange diamonds since the abuses met certain blood diamond specifications like murder, rape, and servitude. 


Australia, a KP Participant, has taken notice of the considerable problems in the KP’s “definition of conflict diamonds;” specifically, Australian government is highly suspicious that unclean diamonds have recently entered its borders.  For instance, between 2011 and 2012, customs officials in Australia confiscated at least “four small shipments of rough stones which breached the KP scheme” and imported “an indeterminate number [of diamonds] believed to be from Zimbabwe.”  Australia is not just troubled with the fact that conflict diamonds are entering its borders, but also that blood diamonds in general are evading the KP and legally finding their ways into Participant markets like its own.  Australian officials are against trading diamonds with any country that has “mines demonstrating major abuses of human rights and corruption, especially Zimbabwe mines which do exactly that.” 


Child abuse is another setback in the diamond industry, and the fact that child labor is not addressed as a KP human rights violation is reason for serious concern. The “Diamond Guild of Australia” wishes to change the KP definition, a change that would hopefully restrict a larger variety of human rights violations, including child labor.  Children are employed in vast numbers in the diamond mining industry, as well as other parts of the diamond industry.   In one province in Angola, 46% of miners were between five and sixteen years old.  Not only are these mines employing children in this dangerous field, they are also depriving these children of an education in order to do so.


Child labor is also involved in areas of the diamond trade outside mining parameters; the diamond-cutting industry is rife with child labor, as well.   India for instance has a “near-monopoly in the diamond-cutting industry, but . . . the low wages and labor . . . keep the industry profitable.”  Children, because of their “small, nimble hands” and “keen eyes” are ideal diamond cutters.  A staggering estimated an estimated thirteen million children work in India despite India’s child-labor laws.  Even though child labor is an obvious shortcoming in the diamond field, the KP does not even begin to reach the child labor issue. The issue is especially troublesome for child diamond cutters, since by the time they get done with them, the diamonds would not be rough. Why the KP thinks aiding in wars against legitimate governments is so terrible, but does not address five or ten-year olds cutting or mining diamonds, is a mystery.


Another related human rights abuse involves the “[nearly] one million diamond diggers in Africa [who] earn less than a dollar a day,” that is if they receive any pay at all.  The un or low paid diggers, or slaves as they ought to be called in some cases, are not even necessarily mining conflict diamonds; the diamonds they mine could very well be KP approved diamonds.  Other human rights issues for African miners include forced labor (mentioned in footnote 81), safety, beatings, rape, murder torture, kidnapping, trafficking, and even “debt bondage.”  By ignoring many blood diamond abuses, the KP and its Participants are unintentionally “enslaving poor countries to mineral monoculture, while also inadvertently appearing to accept the notion that some diamonds are more important than human life.


ii. Conflict Minerals
The conflict mineral industry also proves to be a huge human rights challenge. According to a video documenting the Congo cassiterite (or tin-ore) debacle, mining for tin-ore, a conflict mineral, has left almost four million people dead in only eight years, with nearly 1000 civilians dying every day.  The death count for conflict minerals is growing exponentially and with over six million people dead and counting, has even surpassed the death toll of conflict diamonds.  An unfortunate truth is that Black’s Law Dictionary does not even have a formal definition for conflict minerals. One source states that conflict minerals consist of certain minerals that, like conflict diamonds, “directly or indirectly” fund armed factions.  These minerals include “tin, tantalum, tungsten, coltan, [agate,] and gold extracted from conflict zones, such as North and South Kivu in [the Democratic Republic of] Congo.”  However, unlike conflict diamonds, conflict minerals have no wholly international mechanism to warrant that consumers know where their minerals are coming from and what was involved in their mining.


Although there is no internationally accepted device addressing conflict minerals, the U.S. addressed conflict mineral issues in 2010 with the Dodd-Frank Act (DFA).  The DFA requires companies to publicly reveal the origin of the named conflict minerals in an attempt to dissuade the public from using conflict minerals as a source.  Unlike the KP’s failure to include polished diamonds in its analysis, the DFA has a mechanism to regulate processed minerals; specifically, the SEC, to whom the DFA must report, holds that those conflict minerals “smelted” or “refined” after “January 31, 2013” are within “the supply chain.”  This effectively means that processed conflict minerals cannot merely escape the DFA’s grasp. Additionally, the DFA allows the US Secretary of State to designate new conflict minerals supplemental to the ones already named; this is beneficial since the Secretary can raise the bar as he or she reasonably sees fit.  However, even though the DFA requires stores “to label merchandise with the country of manufacture,” these companies are not required to provide the material’s origins, signaling that, like the case with conflict diamonds, loopholes are present in this context.


It is interesting that the KP is so focused on rebels being involved in the illegitimate diamond trade, but that a Participant consumer can purchase minerals that principally fund the exact same behavior with no difficulty.  A sad truth is that many people do not even know that conflict minerals exist, let alone that they are likely in products they use everyday, like cell phones and light bulbs. Although the KP does not cover conflict minerals, the problems with conflict minerals seem to mirror many of the problems that the KP has with conflict diamonds.  If the KP is so concerned with one kind of mineral (diamonds) being used for unlawful conflict, why would they not be concerned with another mineral creating even more casualties and problems?


4. ARGUMENTS & SOLUTIONS: THE KIMBERLEY PROCESS MUST BE REFORMED


While the KP has not entirely failed its purpose, it has likely reached its outer limits of effectiveness. Now that loopholes have been established and other equally, and probably more, disturbing problems are occurring, it is time to take out the microscope and take a deeper look at where the KP is no longer working. The current KP framework is entirely too restrictive. The KP is likely outdated for a number of reasons; for example, the strict definition of conflict diamonds, specifying rough diamonds and rebels groups, limiting who may trade with whom, detailing which human rights violations are and are not restricted, or even controlling what kinds of minerals apply are all evidence of an impractical scheme.


The solutions to the problems are not simple. Broadening the KP’s scope would entail more than just changing a few words. After all, Participants, like the U.S. with the CDTA, must enact very specific laws to comply with the KP as it is written.  To change the KP now would likely mean that Participants would have to enact new laws or alter current ones to reflect the changes. Change is not an exciting task for Participants; however, formulating changes are certainly no more of a pain than the pain of the people that were beaten, mauled, raped, or assaulted in the mining, processing, and trading of conflict diamonds and minerals. It is no more of a pain than the pain that children had to go through when their parents were slaving away, day after day, to make just a dollar or less. It is no more of a pain than the pain of the children that had to choose between that dollar and an education. And finally, it certainly is no more of a pain than the pain that the men, women, and children experienced when they were murdered for a diamond or other mineral, like tin-ore, endured.


Compared to the tragedies that workers face when mining or even cutting diamonds, a KP redraft or local enactment scheme hardly seems like too large of a concern.  To bring down the “illicit diamond trade would provide these [African] countries with lucrative business-- the profits of which could be used to tackle the other pressing issues of infrastructure rebuilding, education, the HIV/AIDS epidemic, and extreme poverty.”  An even grander resolution would be to restructure the entire illicit mineral trade, not just diamond trade, relating to more human rights violations including death, low wages, safety and health, and child labor.  If bringing down the “illicit diamond trade” could provide a likely benefit, imagine what bringing down the entire illicit mineral trade would do.


To end diamond-triggered human rights violations, the KP must first broaden its reach from only including rough diamonds to at least covering processed diamonds as well; preferably, conflict minerals would also be included. With a consensus vote, the certificate process could be reformed to apply to both rough and processed conflict diamonds; blood diamonds and conflict minerals could also be included to the KP’s coverage.  If consensus cannot be reached, “the Chair is to conduct consultations.”  If for some reason, consultations prove unsuccessful, it might be time for a new document altogether, maybe the large diamond networks that refuse to accept the KP until Zimbabwe and/or other human rights violations are met could be founders of this new document.


A change would likely increase costs and probably burden those who have to bear the costs, but seeing as there are probably at least some people who are unaware about the controversy around diamonds, it is unfair to jump to the conclusion that consumers would necessarily mind carrying the burden. Perhaps if consumers knew that an arbitrary distinction between rough and processed diamonds existed, they would not mind paying a little more, or at least figuring out some way to shift the pay scale. Even if consumers do not approve of a monetary increase, surely those in power have an obligation to prevent human rights abuses, even if the financial impact falls on the consumer.


Second, something must be done about the restrictive trade rules. The KP currently addresses trade only across borders.   Until trade within borders is addressed, people will continue to smuggle diamonds, forge paperwork, and continue to “finance crime.”  Monitoring inter-border trade would require legitimate governments to enact stricter rules, harsher penalties, and preventative measures to make sure that diamonds are not mined illegally in the first place. It would not be easy to ensure that law-breakers do not steal clean diamonds, but if clean diamonds were being smuggled instead of conflict diamonds, at least the major human rights issues would have been addressed.


As previously discussed, laws are not effectively deterring rebels from smuggling or stealing conflict diamonds. If mining countries had better enforcement mechanisms, such as laws that effectively deterred human rights abuses, rebels would be less of an issue and the KP would not have some of its complaints. The fact that diamonds are currently smuggled and certificates are still forged signal that the rebel issues have not been efficiently addressed. Countries mining conflict diamonds must be more active in catching rebels within their borders. To alleviate some of this anarchic behavior, the KP could require that all polished diamonds (as opposed to just rough diamonds) be traceable to their country of origin, and/or require a KP certificate, or a similar alternative, for diamonds being traded within borders. However, as mentioned, it is hard to assume that every thief will abide by stricter laws without a more effective deterrent, especially since they do not like laws to begin with. This is a problem that neither the KP nor the UN has been able to discontinue. To this end, more local governments must put more of an effort into alleviating the issues.


Perhaps with increased international encouragement and financial backing, possibly through charity or higher diamond profits for the mining countries, governments would have the means and incentives available to better regulate mining.  However, it would probably be important to remind some of these governments, like Angola, Venezuela, Zimbabwe, DR of the Congo, and other similarly placed countries, that they are signatories or unsigned parties to the International Covenant on Civil and Political Rights (“ICCPR”), and that the ICCPR requires signatories to “protect and preserve basic human rights such as the right to life and to human dignity, . . . freedom from torture, ill-treatment.”   If signatories are not abiding by these rules, a deeper problem that starts at the top of the system, with the government, exists; if this is the case, the KP has unearthed a grave problem. For the KP to ignore blatant ICCPR violations would be giving the KP and human rights organizations all over the world a bad reputation. How can a human rights organization not make an issue of such harms and not at least publicly acknowledge it?
 

Whether or not a county is an ICCPR signatory, it makes sense that a government would snub addressing the issue of a stolen diamond worth only $1 to a miner, since the fight would not appear to be worth the return.  However, if profits for miners and/or mining countries increased, local governments would have a larger stake in protecting and keeping their country’s diamonds clean. Furthermore, with increased profits, laborers would likely work more efficiently, especially if they felt secure from rebels and thieves. True, these profits would have to come from the diamond cutters, jewelers, jewelry stores, or even the consumers, but there is likely room for a profit shift.  The miners and cutters bear encumbrances and liabilities that people further along the supply chain benefit from. These profits could and should be spread to those miners and cutters who put in the most sweat and blood. To allow Participant consumers to knowingly buy cheap diamonds only reinforces poverty, exploits miners, probably violates international labor laws, and keeps miners from providing for themselves and their families.


Third, the KP’s strategy of only regulating rough diamonds “used by rebel groups or their allies to finance conflict aimed at undermining legitimate governments” is problematic.  This restriction fails consider that a legitimate government could possibly abuse diamonds, just like rebels in Zimbabwe did. The KP needs a new baseline to make sure that governments do not get away with hurting civilians for diamond profits. Diamond-funded conflict against legitimate governments is a troublesome problem, but to limit the framework for regulation only to the harm caused by rebels, and thus ignore the problems caused by the government, is worse. An authentic government should be protecting its people instead of hurting them; a rebel is expected to disregard the law; but for the government to put its civilians in the kind of conditions that Zimbabwe has with its Marange diamonds, is a mockery of the KP.


Setting a new and higher bar could only benefit the KP; it would be reaching so many more individuals and likely gain even more support than it currently has. To remedy the flaw, the KP must “no longer draw what many consider a silly distinction between government-sponsored and rebel-sponsored violence;” just because the KP does not recognize certain atrocities, does not make them any less important.   The KP ought to define conflict diamonds as diamonds, both rough and polished, that fund or enable physical violence or abuses against civilians or authenticated governments. By altering the conflict diamond definition in such a way, Participant’s like Zimbabwe and Venezuela would have never gotten away with their brutalities in the first place. Still, even if the conflict diamond definition integrated processed diamonds, the KP would still be disregarding conflict minerals, as well as overlooking other outrages related to blood diamonds, such as child labor and rape, and disregarding all conflict minerals. This problem could be fixed if, like the past solutions indicate, the KP’s coverage was expanded. The KP would need to swap the wording from centering on equipped insurgences to phrasing that relates to more, and hopefully one day all, human rights violations.


To detail which violations should be included in an updated KP would be difficult, as the number of potential violations is so high. There are just too many appalling human rights violations applying to the diamond and mineral trade to pinpoint which ones are the worst and absolutely apply best to the KP. However, a good start would be looking into the most frequent violations currently happening to miners (or cutters, jewelers, etc.). Included abuses would likely include torture, physical and severe mental abuse, and addressing labor issues, such as pay, hours, and age, since these are the issues that are most reported and cause the most physical harm.  Finally, it would be beneficial if the KP could include conflict minerals in the scheme’s coverage. By replacing the term of “diamond” with the word “mineral,” the KP could still safeguard diamonds.  This change would probably require the most added effort since many countries currently do not have any way to regulate minerals. To comply with this change, should it occur, Participants would have to enforce a conflict mineral provision and apply legislation similar to the U.S.’s DFA. 


The KP should look into the DFA’s successes and failures to formulate the best way to incorporate conflict minerals into its document. Using a strategy similar to the DFA would be superior to just naming conflict diamonds in the definition, since minerals cover a broader sphere. Just like the DFA forbids newly processed minerals to move through commerce unaffected, the KP should try its best to incorporate processed diamonds into its classification of protected diamonds/minerals, as well.  Also, just like the DFA allows the U.S. Secretary of State to designate conflict minerals on top of certain ones already named, the KP should incorporate this ideology into its document to give itself the flexibility that the DFA has.  With the ability to add new minerals to the KP’s list of covered minerals, the KP would be a more flexible and relevant document in the long term and its problems of under-inclusiveness could be rectified.


Overall, a change will likely be simpler for the KP to address than it will be for Participants to enact and comply with; territories would, after all, probably have their laws to meet the KP adjustment. However, benefits of life and prosperity likely trump the minor annoyances caused by changing or enacting new legislation.


5. CONCLUSION


A reported decrease in the percent of conflict diamonds in recent years is not conclusive evidence of the KP’s total effectiveness in the diamond trade regulation; the KP has a plethora of faults that support the conclusion that the KP likely fails in certain respects. Specifically, the KP fails in that it confines its regulations only to very precise, KP-defined infringements of a very narrow, rough conflict diamond definition.   The strict definition has generated loopholes that the KP is, essentially, unable to readily close.  The first problem is that the KP only guards against the trade of rough conflict diamonds; therefore, many processed diamonds are excluded from coverage. Second, by focusing exclusively on trading between Participants, the KP requires nothing of inter-border trade and instigates unstable behavior, like smuggling, within territories. Third, the KP only protects against one human rights violation, “diamond purchases . . . [used to] undermine legitimate governments.”  The KP’s low ceiling creates a number of issues; notably, it ignores many human rights violations and draws trivial distinctions.


The KP’s relevancy and effectiveness has likely hit a wall in its current context. Rebels and even legitimate governments have found loopholes around the certification scheme. If the KP truly sets out to protect against human rights encroachments, it must change with the times and close the existing gaps in the protections it offers. The KP should not limit itself to rough diamonds, should make intra-border trade of conflict diamonds ground for denial or a ban of Participant status, and should tighten its grasp on potential offenders and clarify its list of violations. These alterations would yield higher protections from a broader array of violations and could help save many lives. The KP needs to move forward before it finds itself taking a huge step in the wrong direction when countries, companies, and individuals become aware of its many potentially obvious faults. In conclusion, the KP is long overdue for a thorough makeover.


Footnotes: 

Conflict Diamonds, Alberta Diamond Exchange, http://www.abdiamond.ca/conflict-diamonds-kimberley-process.cfm (quoting Martin Chungong Ayafor, Chairman of the United Nations Sierra Leone Panel of Experts) (last visited April 29, 2013).
  Kimberley Process, Kimberley Process Main Page http://www.kimberleyprocess.com (last visited on April 27, 2013) [hereinafter KP Main Page].
  See Clean Diamond Trade Act, PL 108–19, § 3901, 117 Stat 631 (2003) [hereinafter CDTA]; See also John Roach, “Blood Diamonds” and How to Avos Buying Illicit Gems, National Geographic (December 8, 2006), http://news.nationalgeographic.com/news/2006/12/061208-blood-diamonds.htm.
  CDTA § 3901; Tracey Michelle Price, The Kimberley Process: Conflict Diamonds, Wto Obligations, and the Universality Debate, 12 Minn. J. Global Trade 1, 25 (2003).
  See Shannon K. Murphy, Clouded Diamonds: Without Binding Arbitration and More Sophisticated Dispute Resolution Mechanisms, the Kimberley Process Will Ultimately Fail in Ending Conflicts Fueled by Blood Diamonds, 11 Pepp. Disp. Resol. L.J. 207, 208 (2011)
  Kimberley Process, Kimberley Process Core Document, http://www.kimberleyprocess.com/web/kimberley-process/administrative-decisions (last visited on April 27, 2013) [hereinafter KP Document].
  See Karen E. Woody, Conflict Minerals Legislation: The Sec's New Role As Diplomatic and Humanitarian Watchdog, 81 Fordham L. Rev. 1315, 1348-49 (2012).
  For an explanation on the uncertainty of improvements, see Price, supra note 9, at 25 (there is no way to ascertain the true nature of the numbers); Alia Hoyt, How the African Diamond Trade Works, How Stuff Works, http://money.howstuffworks.com/african-diamond-trade2.htm (last visited April 29, 2013) (in 2006, “roughly $23 million worth of Ivory Coast diamonds were smuggled” and passed off as legitimate).
  The Truth About Diamonds, Global Witness (November, 2006), http://www.globalwitness.org/sites/default/files/import/the_truth_about_diamonds.pdf (last visited April 29, 2013) (citing statistics from 2006, when the KP claimed that only 4% of diamonds on the market were conflict diamonds).
  Kimberley Process, Kimberley Process Basics, http://www.kimberleyprocess.com/web/kimberley-process/kp-basics (last visited April 27, 2013) [hereinafter KP Basics].
  Julie Elizabeth Nichols, A Conflict of Diamonds: The Kimberley Process and Zimbabwe's Marange Diamond Fields, 40 Denv. J. Int'l L. & Pol'y 648, 653 (2012).
  KP Basics, supra note 9. 
  Id. (the 2002 KP document came after years of negotiations between international governments, “the international diamond industry and civil society organizations”).
  See Murphy, supra note 5, at 208.
  KP Basics, supra note 9. 
  Id.; For Participant definition, see KP Core Document, supra note 6, at § 1.
  See KP Main Page, supra note 2. 
  KP Basics, supra note 9. 
  See Murphy, supra note 5, at 208.
  See KP Core Document, supra note 6, at § 1.
  Id.
  See Murphy, supra note 5, at 208.
  See KP Core Document, supra note 6, at § 3.
  For details on “internal controls,” see id. at § 4.
  America has a system of internal controls to abide by KP rules. See generally CDTA § 3910.
  See KP Core Document, supra note 6, at § 4.; see generally CDTA § 3902
  See KP Core Document, supra note 6, § 1.
  For a list of standards and practices, see id. at § 4.
  See generally Woody, supra note 7, at 1348-49 (in the 1990’s, international conflict diamond trade made up as much as 15%; currently is reported as less than 1%).
  See generally KP Basics, supra note 9 (only those rough diamonds being used by rebels against legitimate governments elicit KP coverage). 
  For a definition of rough diamonds see KP Core Document, supra note 6, at § 1.
  See generally id. (protections only cover rough diamonds).
  See generally id.
  See id.
  For a definition of rough diamond, see id.
  See generally Tina Muscarella Gooch, Conflict Diamonds or Illicit Diamonds: Should the Difference Matter to the Kimberley Process Certification Scheme?, 48 Nat. Resources J. 189, 203 (2008).
  See generally Murphy, supra note 5, at 219.
  For examples on ways to get around the KP system, see generally id. (once diamonds are polished, the KP pays no attention to them).
  See generally KP Core Document, supra note 6, at § 1 (only rough diamonds are monitored; only international commerce is regulated).
  See generally id. (KP specifies that only inter border trade is regulated).
  Id.
  Id.
  See id. at § 4.
  Id.
  What, Why: How do you spot a stolen diamond?, BBC News Magazine, February 20, 2013, http://www.bbc.co.uk/news/magazine-21525403 (last visited April 27, 2013).
  See id.; For an example of Venezuela’s blatant “non-compliance,” see Girish Gupta, Not Just Out of Africa: South America’s “Blood Diamonds” Network, Time World (August 20, 2012) http://world.time.com/2012/08/20/not-just-out-of-africa-south-americas-blood-diamonds-network/ (exporting could place Venezuela in the global top 15% of diamond exports with as much as 300,000 carats exported annually, even though it does not claim to have any diamond exports).
  See What, Why: How do you spot a stolen diamond?, supra note 53.
  For definition of legitimate government, see Legitimate Government, Dictionary.com http://dictionary.reference.com/browse/legitimate+government (last visited April 27, 2013); see KP Core Document, supra note 6, at § 1.
  See KP Core Document, supra note 6, at § 1.
  See Nichols, supra note 10, at 680 (these groups said they would not be a part of the KP and encouraged their members to not follow certain rules, like trading with Zimbabwe). 
  See generally id. (groups stating that its members are not allowed to trade with Zimbabwe).
  Victoria Eastwood, Inside Zimbabwe’s controversial Marange diamond field, CNN (March 16. 2012), http://edition.cnn.com/2012/03/15/business/zimbabwe-marange-diamond-field.
  Id.
  See Hilary Andersson, Marange diamond field: Zimbabwe torture camp discovered, BBC (August 8, 2011), http://www.bbc.co.uk/news/world-africa-14377215.
  See Kerry Hall, Australia calls for inclusion of ‘blood diamonds’ in UN definition, Mining.com (March 12, 2013), http://www.mining.com/australia-importing-blood-diamonds-13627/ (noting that this mass murder occurred during a evaluation time and that Zimbabwe was allowed to remain a KP Participant despite the recurring casualties).
  Conflict diamonds are protected under the KP. See KP Core Document, supra note 6, at § 1.
  See id. at § 6 (the KP could ban Zimbabwe if Participants reach a consensus).
  Explaining how Zimbabwe was suspended, see Andersson, supra note 64; see also KP Core Document, supra note 6, at § 6 (decisions can be made and Participants may effect change by reaching consensus); see also Kimberley Process: Suspend Zimbabwe, Human Rights Watch (October 29 2009) http://www.hrw.org/news/2009/10/29/kimberley-process-suspend-zimbabwe (suspension requires KP members to reach a consensus).
  Zimbabwe: Diamond Abuses Show Need for Reforms, Human Rights Watch, June 4 2012, http://www.hrw.org/news/2012/06/04/zimbabwe-diamond-abuses-show-need-reforms (last visited April 27, 2013).
  See Nichols, supra note 10, at 682 (RapNet, “world’s largest diamond trading network,” stated to its “6,750 members” it would not support Marange fields and would not support KP; they told members that any company who did not follow its lead would be expelled and made a public example of); see Zimbabwe: Diamond Abuses Show Need for Reforms, supra note 68 (lifting the Zimbabwe ban caused Global Witness, a KP founder, to “withdraw from the initiative”).
  See generally KP Core Document, supra note 6, at § 1 (the KP only protects from conflict diamonds).
  See generally Martin Rapaport, Stop Buying and Selling Blood Diamonds, Rapaport Magazine (February 2010), available at http://www.diamonds.net/News/NewsItem.aspx?ArticleID=29578.
  See id.
  Diamond Industry Issues, Labor & Community, Brilliant Earth, http://www.brilliantearth.com/conflict-diamond-child-labor/ (last visited April 27, 2013).
  For an idea about which circumstances apply, see KP Core Document, supra note 6, at § 1 (intervening only when the diamond is rough and is used to fund specific instances of war against the government).
  See generally Murphy, supra note 5, at 223.
  See generally Rapaport, supra note 62.
  See generally Mark Dunn, Pressure over ‘blood diamond imports, Herald Sun (March 9, 2013), http://www.heraldsun.com.au/news/victoria/pressure-over-blood-diamond-imports/story-e6frf7kx-1226593875019; see also Hall, supra note 65.
  See Hall, supra note 65.
  See generally Hall, supra note 65.
  Mark Dunn, supra at 77.
  Hall, supra note 65.
  Diamond Industry Issues, supra note 75.
  Id.
  Explaining the huge human rights issue of depriving children of education. See Diamond Industry Issues, supra note 75. (Many, if not most, child miners do not attend school . . . [a]s adults, these children often will have little choice but to continue working as miners . . . [c]hild labor thereby condemns many children to a lifetime in the mines, robbing them as well their countries of a brighter future.”).
  Sakina Sadat Hussain, A diamond’s journey: Grime behind the glitter?, NBC (June 26, 2009), at http://www.nbcnews.com/id/15842528/#.UWBoq6X5QdI.
  See id.
  Id.
  See id.
  Diamond Industry Issues, supra note 75.
  For an explanation on forced labor in the diamond industry, see id. (“[M]ilitaries force people into mining . . . 2008, the Zimbabwean army seized control of valuable diamond fields . . . forced local adults and children to mine for diamonds . . . resist[ers] have been killed or subject to abuses including beatings, rape, and torture.”).
  See id.
   See generally Michelle Chen, Child Labor, Torture and Rape: Attempts to Regulate the Brutal Diamond Industry Failing, AlterNet (December 11, 2011),
http://www.alternet.org/story/153396/child_labor,_torture_and_rape%3A_attempts_to_regulate_the_brutal_diamond_industry_failing.
  Journeyman Pictures, Grand Theft Congo- DRC, July 2005 (uploaded November 7, 2007), http://www.youtube.com/watch?v=O1FQmUQ1-mM (last watched February 20, 2013).
  Greg Queyanne, Beyond Blood Diamonds: Conflict, Campaigning, and the Congo, Ceasefire, October 1, 2012, http://ceasefiremagazine.co.uk/blood-diamonds-conflict-campaigning-congo/ (last visited April 27, 2013).
  For one definition of conflict diamonds, see Woody, supra note 7, at 132.
  Conflict Minerals, United Nations Global Compact, http://human-rights.unglobalcompact.org/dilemmas/conflict-minerals/ (last visited April 27, 2013).
  Josef Overdorf, Is Agage the next ‘blood diamond’?, Alaska Dispatch (April 21, 2013) http://www.alaskadispatch.com/article/20130321/agate-next-blood-diamond; While America does have a system in place for conflict diamonds, the DFA does not apply to other nations, See also Dodd–Frank Wall Street Reform And Consumer Protection Act, PL 111-203, § 1502, 124 Stat 1376 (2010) [hereinafter DFA].
   DFA, supra note 88.
  See id. 
  Conflict Minerals, 77 FR 56274-01 (conflict minerals are not within the chain of supply “if they have been smelted or fully refined or, if they have not been smelted or fully refined, they are outside the Covered Countries”).
  DFA § 1502 (“The Secretary of State shall add minerals to the list of minerals in the definition of conflict minerals under section 1502, as appropriate.”).
  See id.
  This would not apply to any Participant who also has laws barring conflict minerals, see generally id.
  ‘Diamonds Are A Warlord’s Best Friend’—Enforcing Human Rights In The Supply Chain, 23 JITAX 19, 20 (“The four minerals are columbite-tantalite, used in cellphones and turbines; cassiterite, a source of tin used in consumer packaging; and woframite, used to produce tungsten for light bulbs and gold and that has an important use as an electronic conductor and for jewelry.”).
  Murphy, supra note 5, at 213-14.
  Id. at 227-28.
  Id.
  Id.
  KP Core Document, supra note 6, at § 6 (decisions can be made and Participants may effect change by reaching consensus)
  See id.
  See Nichols, supra note 10, at 682 (RapNet, “world’s largest diamond trading network,” told to “6,750 members” that it would not support Marange fields and would not support KP); see also Zimbabwe: Diamond Abuses Show Need for Reforms, supra note 68 (lifting the Zimbabwe ban caused Global Witness, a KP founder, to “withdraw from the initiative”).

  Feichtner, supra note 33, at 640
  Who, What, Why, supra note 53.
  See International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; For the quote, see also FAQ: The Covenant on Civil & Political Rights (ICCPR), http://www.aclu.org/human-rights/faq-covenant-civil-political-rights-iccpr (last visited April 28, 2013).
  See Anonymous, Zimbabwe diamonds push world prices down, The Zimbabwe Guardian, February 6, 2013, http://talkzimbabwe.com/zimbabwediamonds/ (last visited April 27, 2013) (miners may get paid as little as one dollar a day to mine diamonds).
  For examples on how profits are divided; miners and cutters receiving significantly less than those further along the supply chain, see id. (diamond prices are marked far past the $1 mark that an African miner may get paid, certain mining countries can expect to sell a one-carat diamond for $100; Zimbabwe sells diamonds for $40 per carat.); see also Janine Roberts, In Debt Bondage- the Child Cutters of India, The Web Inquirer, http://www.sparkle.plus.com/d-Ch15-child.html (last visited April 27, 2013) (cutters in India can receive between $.25-$.50 for cutting a single diamond); see also Diamonds are Not Forever: Industry Moves from Israel to India, Wharton University of Pennsylvania (April 7, 2011), http://knowledge.wharton.upenn.edu/india/article.cfm?articleid=4586 (the cost to polish and cut a diamond in India can run $10 a carat); Diamond Price, Guide, Diamond Buying Guide, http://www.thediamondbuyingguide.com/diamondpriceguide.html (last visited April 27, 2013) (a buyer can expect to spend between $2,000-$10,000 for a one carat diamond).
  For comparison of blood diamond workers to slavery, see generally Blood Diamond Workers, Modern Day Slavery https://sites.google.com/a/tapa.tp.edu.tw/modern-day-slavery/forced-labor/blood-diamond-workers (last visited April 28, 2013).
  See generally KP Core Document, supra note 6, at § 1.
  See Rob Bates, Can the Kimberley Process Be Saved?, JCK (February 24, 2012), http://www.jckonline.com/blogs/cutting-remarks/2012/02/24/can-kimberley-process-be-saved.
  See generally arguments made under the “Problems” section.
  For example of the U.S. approach in the DFA, see DFA § 1502 (“The Secretary of State shall add minerals to the list of minerals in the definition of conflict minerals under section 1502, as appropriate,” so it is assumed that because diamonds are minerals, the Secretary of state, or whoever the national equivalent would be if the Kimberley Process chose to adopt a similar act, could designate diamonds as conflict minerals).
  Conflict Minerals, 77 FR 56274-01.
  Id. (stating that Secretary of State may designate minerals as conflict minerals, as he/she wishes).
  See generally KP Basics, supra note 9. 
  See id. 

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