Carl Unegbu: The House of Kimberly — Standoff and Failure at a Watchdog

Zimbabwe has divided the world again, but this time it’s not due to land reform. The controversy concerns the country’s new-found wealth in diamonds, an industry in which it was not even a player a decade ago.
The scene of the latest conflict over Zimbabwe occurred in Swakopmund, Namibia, where the watchdog Kimberley Process (KP)—a group formed in 2003 to eliminate “conflict or blood diamonds”—gathered in early November to discuss its recommendation that Zimbabwe be suspended from the group. During its review mission in early July, the group found “credible indications of significant non-compliance” with Kimberley’s minimum standards, including human rights violations by Zimbabwe’s military, and diamond smuggling and corruption in the Marange diamond fields in eastern Zimbabwe.
The regulatory body’s plenary session proved rather divisive; while Israel and Canada pushed for the suspension of Zimbabwe, other members, like host Namibia, South Africa, Tanzania, Russia, and the war-torn Democratic Republic of Congo opposed suspension and instead called for technical assistance. Russia went the furthest in its defense of Zimbabwe, reportedly insisting that the country was entirely free of conflict diamonds, a sentiment voiced months earlier by Namibia.
As it turned out, the effort to suspend Zimbabwe from Kimberley failed. Zimbabwe proposed, and was eventually allowed, an eight-month plan of action that includes a phased withdrawal of military personnel from the Marange diamond fields, as well as the establishment of a monitor mutually agreed upon by Zimbabwe and the KP to examine and certify diamonds from Marange as Kimberley-compliant. Given the recommendations of the review mission and the seriousness of the problem at hand, the November deal gave Zimbabwe no more than a slap on the wrist, betraying a much deeper problem with the entire Kimberley scheme than just the obstructionist behavior of some member countries in the group.
The bottom line is that the recent standoff and failure over Zimbabwe was a disaster waiting to happen.
There are good grounds to conclude that Kimberley’s goals are not only poorly stated, but also that the design of its machinery is genuinely flawed. Sadly, under the current KP scheme, a future replay of its failure in Zimbabwe seems all but inevitable.
For starters, the diamonds from Marange should have been classified as “blood diamonds”—in October 2008 (contra statements from Russia and Namibia), the Zimbabwean state sanctioned the massacres of more than 200 people in a military takeover of the diamond fields. Once so classified, diamonds from Marange would have then been excluded from the stream of global diamond commerce.
But the definition of “conflict or blood diamonds” under the KP treaty is so narrowly drawn that one would need to travel beyond the text of the treaty and into the zone of its overall spirit in order to reject the Marange diamonds as actual blood diamonds. When the KP’s preamble talks about human rights abuses linked to diamonds, the context suggests a reference to diamond–fueled conflicts between two armed factions. Unfortunately, it’s a stretch to claim that the KP treaty also covers situations in which a brutal, repressive regime massacres its own people, which is what happened in Zimbabwe’s Marange fields.
Notice how Russia and Namibia, upstanding KP members both, were able to protect Zimbabwe from accountability by seizing upon the language gap to deny the existence of blood diamonds in Marange.
One simple and effective way to eliminate this problem is for Kimberley to rid itself of the phrase "conflict or blood diamonds" in favor of either “dirty diamonds” or “illicit diamonds.” The latter two terms go further than the current lexicon by accounting for the myriad situations in which the mining, cutting, polishing, or sale of diamonds are accompanied by bloodshed, human rights abuses, or labor violations.
After all, the spirit of the Kimberley Process is to clean up the diamond trade by removing the taint of bloodshed and other evils upon its reputation.
As for improving the machinery of the KP scheme, investigations of treaty violations must be assigned to a neutral outside body. Alternatively, the KP members may opt to do the investigations themselves, but should eliminate the consensus rule that requires recommendations to be approved by all members, including those under investigation. The impasse over Zimbabwe demonstrates that the consensus rule is a recipe for failure.
In the end, diamond industry expert Chaim Even-Zohar put it best with regard to the stark options now facing the Kimberley Process: discontinue the scheme entirely or renew its framework. No doubt, a full-scale discontinuation of Kimberley would prove catastrophic to the diamond industry—and to those who rely on it.
But given KP’s ongoing lapses and the world’s growing skepticism with regard to its efficacy, the group’s members had better get serious about overhauling Kimberley’s framework and properly redefining its goals. Nothing less than the preservation of the diamond industry’s legitimacy is at stake. And the hour is getting late.
Carl Unegbu is a lawyer and journalist in New York City.

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