By Prof. Bharat H. Desai
On March 29, 2023, the United Nations General Assembly (UNGA) adopted a resolution titled “The role of diamonds in fuelling conflict: breaking the link between the illicit transaction of rough diamonds and armed conflict as a contribution to prevention and settlement of conflicts”. The draft resolution of March 27, 2023 (A/77/L.61) was mooted by Botswana. It recognized that the Kimberley Process Certification Scheme (KPCS) helps in ensuring the implementation of Security Council resolutions such as 1643 (2005), 1579 (2004), 1521 (2003) containing sanctions on the trade in conflict diamonds. The UNGA had taken the lead through resolution 55/56 of December 1, 2000 for “breaking the link between the illicit transaction of rough diamonds and armed conflict” and called for an international certification scheme for rough diamonds. That paved the way for the initiative by a select Southern African countries for the Kimberley Process. Since then the UNGA has provided strong support for the KPCS including through resolution 75/261 (March 03, 2021).
The Kimberly Process Certification Scheme
Bereft of the status of a legally binding international treaty, the KPCS is a unique inter-governmental initiative brought into being on November 05, 2002 through the Interlaken Declaration on the Kimberley Process Certification Scheme for Rough Diamonds. It came into effect on January 01, 2003. The UNGA acknowledged the KPCS through its resolution 56/263 of March 13, 2002. The KPCS came into effect on January 01, 2003. It aims at eliminating the use of rough diamonds to finance armed conflicts. Hence, they are termed ‘conflict diamonds’ or ‘rough diamonds’ that are sold by rebel groups or their allies to fund conflicts against legitimate governments. The KPCS focuses on what has been dubbed as ‘blood diamonds’ as they emanate from areas that are mineral rich and armed groups engaged in the extraction process indulge in violence and brutality that take a heavy toll of wildlife, forests and people. It has fueled insurgencies as environment becomes a ‘cannon fodder’ in conflict zones of the world. The National Geographic film Diamonds of War: Africa’s Blood Diamonds (2007), by journalist Dominic Cunningham-Reid, provides a peep into the mysterious world of diamonds that have almost become a curse for the people.
India chaired the KPCS in 2019 that comprises 59 participants from 82 countries including the European Union (with 27-member states). The KPCS has been given effect through respective domestic legislations. KPCS accounts for 99.8% of the global production of rough diamonds. It has defined ‘conflict diamonds’ as “rough diamonds used to finance wars against governments”. The trade in rough diamonds (HS Code 7102.10, .21 or .31) is permitted between KPCS participants on the basis of authentic KP certificates. It is an umbrella entity that brings together participating governments, diamond industry and civil society. The World Diamond Council (WDC) is the diamond industry’s representative in the KP that has designed a ‘system of warranties’ (SOW). It requires professional buyers and sellers of rough diamonds, polished diamonds and jewelry sets with diamonds to include a warranty statement on B2B invoices and memos each time a diamond changes hand. It ensures the next buyer that diamond originated from sources in compliance with KPCS. An upgraded SOW launched in 2021 requires compliance with the guidelines of the WDC as well as the KPCS.
In fact, the SOWs, endorsed by the KPCS participants, all buyers and sellers of both rough and polished diamonds must make the following affirmative statement on all invoices:
“The diamonds herein invoiced have been purchased from legitimate sources not involved in funding conflict and in compliance with United Nations resolutions. The seller hereby guarantees that these diamonds are conflict free, based on personal knowledge and/or written guarantees provided by the supplier of these diamonds.”
The KPCS process works on the basis of inter-governmental “conflict-free" certification that provide legitimacy to the shipments of rough diamonds. It is estimated that trade in diamonds worth $13.88 billion was facilitated in 2015 through the KP. With such high stakes, what constitutes “conflict-free” remains a moot question. Most of the African continent is dependent on proceeds from diamond sales. The diamonds represent an industry worth over $81.4 billion per year. More than 50 per cent of global diamond production is sourced from Africa alone.
Diamond–Conflict Nexus: Role of the UN Security Council
In view of direct links with the source of origin of diamonds from the conflict regions, the UN Security Council (UNSC) gave its stamp of approval to the KPCS through the resolution 1459 of January 28, 2003 and recalled previous resolutions: 1408 (2002), 1385 (2001), 1343 (2001), 1306 (2000) and 1173 (1998). In taking enforcement actions in situations of Côte d’Ivoire (resolution 1643 of December 15, 2005) the UNSC recognized "the linkage between the illegal exploitation of natural resources such as diamonds, illicit trade in such resources, and the proliferation and trafficking of arms and the recruitment and use of mercenaries as one of the sources of fuelling and exacerbating conflicts”. Similarly, in case of Liberia (resolution 1579 of December 21, 2004), the UNSC sought to “establish an effective Certificate of Origin regime for trade in rough diamonds that is transparent and internationally verifiable” to be vouched by the Kimberley Process. The UNSC has repeatedly expressed grave concern as regards the “linkage between the illicit trade in rough diamonds from certain regions of the world and the fueling of armed conflicts that affect international peace and security”. As indicated above, the UNSC has acted at various times under enforcement Chapter VII of the Charter to address threats to international peace and security posed by conflicts linked to diamonds. Through these actions, it has prohibited all states from exporting weapons to countries affected by conflicts in countries such as Sierra Leone and Liberia.
The 2022 KPCS Botswana Meeting and Beyond
The KPCS provides an arrangement wherein the participating countries give effect to the consensual decisions through their respective domestic regulatory processes. For instance, the sub-committee on trade of the US Congress held ‘conflict diamonds’ hearings on October 10, 2001. It was followed by the enactment of a special legislation Clean Diamond Trade Act 2003 - . It authorizes (Section 4) the US President to “prohibit the importation into, or exportation from, the United States of any rough diamond, from whatever source, that has not been controlled through the Kimberley Process Certification Scheme”. The 2002 Interlaken Declaration calls upon KPCS participants to implement the scheme through their “respective laws and internal systems of control meeting the standards established in the Document (KPCS)”. The KPCS for rough diamonds need to be compliant with international trade rules. It also needs to spell out the definition of ‘conflict diamond’. The 2022 Botswana intersessional meeting indicated readiness of the KPCS members to work on this crucial aspect around which the entire scheme revolves. Moreover, it needs to further build upon the 2021 Moscow Declaration on Principles to promote best practices in the diamond sector. As a corollary, after a hiatus of 20 years, it is time for the KPCS to place the 2002 Interlaken Declaration on a firmer legal footing of a multilateral treaty. The task is cut out in 2023 for the KP Chair Zimbabwe.
Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies (SIS, JNU), contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam) and served as a member of the official Indian Delegations to various multilateral negotiations (2002-2008) as well as coordinated the initiatives for Making SIS Visible (2008-2013) and the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020)