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All that is gold does not glitter
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Marco Johannes Leitner
Master Track: Public International Law
Supervisor: prof. mr. dr. H.G. (Harmen) van der Wilt Date of submission: 27.07.2018
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Abstract:
This article seeks to break the link between gross human rights violations by non-state armed groups and gold by enhancing the traceability of gold originating from the eastern provinces of the Democratic Republic of Congo (DRC). The research will thereby analyze the Kimberley Process Certification Scheme(KPCS), which was designed to combat the illicit trade in rough diamonds. and establish whether or not a similar certification scheme would help in addressing the issue of conflict gold in the eastern DRC. The research analyzes the effectiveness of initiatives already in place to address the traceability of gold in the eastern provinces of the DRC and concludes that their effectiveness is limited because of 1) the security situation on the ground and 2) the nature of the artisanal gold mining. It concludes that a KPCS style system, with certain adjustments to it could address the issue of conflict gold in the eastern DRC in an effective way. Crucial in this regard however, is the close collaboration with the government of the DRC or the MONUSCO
peacekeeping force, which constitute an essential element in the fight against conflict gold as they would need to supply the necessary military protection needed to effectively implement such a KPCS style based system.
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The Democratic Republic of the Congo (DRC) is a country situated in Central Africa, covering a surface of around two thirds of western Europe, making it the 12th largest country in the world 1.
Since the mid 1990 parts of the DRC have gone through a constant state of conflict. Following two major wars in 1996 and 2003, which cost the lives of millions of people, the country remains in a fragile state. Especially in the eastern provinces of the DRC, longterm peace lies in the distant future. It is estimated that around 70 different armed groups have taken control of the DRC´s eastern region 2 committing serious human rights violations including the targeting and killing of
civilians, sexual violence, forced displacement and the destruction of property 3.
One of the major factors in the conflict of the eastern DRC is the competition of the various armed groups for control over natural resources such as gold, cassiterite, wolframite or coltan. Although the root causes of the conflict are more complex, including land rights, ethnicity and citizenship among others, the struggle over natural resources helps armed groups to survive and finance their campaigns. Furthermore, rent seeking from natural resources by regular soldiers undermines the very structure of a unified and disciplinary army that is needed to provide safety to the civilian population living in that area 4. This leaves the civilian population to the mercy of the armed groups,
which exploit their monopoly of power and inflict a state of terror on the local population.
Unless a system is found to reestablish control over the mining sites in the eastern provinces of the DRC, minerals will continue to fuel the conflict and abuse of human rights in the eastern provinces of the DRC.
This paper addresses the particular issue of gold found in eastern DRC, which is used to finance the campaigns of these armed groups. It is estimated by the United Nations that around 98% of the
! BBC News: DR Congo election: Joseph Kabila ahead of Tshisekedi http://www.bbc.com/news/world-africa-16047150 1
accessed: 06.06.2018.
! Stearns, Jason K.; Vogel, Chritoph: The Landscape of Armed Groups in the Eastern Congo, Congo Research Group, 2
Center on International Cooperation, 2015, p. 4.
! Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of 3
Congo. https://www.un.org/sc/suborg/en/sanctions/1533/materials/summaries/entity/forces-democratiques-de-liberation-du-rwanda-%28fdlr%29 accessed: 06.06.2018;
Report of the United Nations Joint Human Rights Office on Human Rights Violations perpetrated by Armed Groups during attacks on villages in Ufamandu I and II, Nyamaboko I and II and Kibabi Groupements, Masisi Territory, North Kivu Province between April and September 2012, p. 10-12.
! De Koning, Ruben: Controlling Conflict Minerals in the Democratic Republic of Congo, SIPRI Policy Brief, 2010, p. 4
entire production of the artisanal gold mines in eastern DRC, is being smuggled out of the country 5.
Furthermore, many of the artisanal mining sites in eastern DRC are controlled either by the army or an illegal armed group. Although the implementation of mineral traceability for other minerals such as tin, tantalum and tungsten, has considerably reduced the financing of armed groups through such minerals, the gold sector continues to suffer from a lack of a traceability system making it prone to abuse to finance armed groups. Although companies in gold importing countries are under the obligation, under the UN arms embargo to ascertain that their purchase does not indirectly finance armed groups, the true origin of the purchased gold often remains unknown.
This paper seeks to break the link between gross human rights violations and gold by enhancing the traceability of gold originating from the eastern provinces of the DRC. The research will thereby analyze the Kimberley Process Certification Scheme, which was designed to combat the illicit trade in rough diamonds. and establish whether or not a similar certification scheme would help in
addressing the issue of conflict gold in the eastern DRC.
The first part of this article provides basic background information on the history of the DRC and gives an explanation of how gold originating from eastern DRC makes its way into the global gold market. Part II will outline the legal principles for the governance of mineral resources as well as describe the development of the human rights due diligence concept for business. Moreover, this part will show the impact of internal armed conflict on the these principles and will discuss the most important national and international initiatives that have been adopted in order to facilitate the legal exploitation of minerals and the human rights due diligence framework with the aim to curtail the trade in conflict gold from eastern DRC. In part III the feasibility of achieving traceability to source conflict-free minerals through these initiatives will be evaluated. Part IV analyzes the KPCS
certification scheme for rough diamonds, detailing its strengths and weaknesses. The last part of this article will then discuss whether the adaptation of a similar certification scheme would improve the traceability of conflict gold from eastern DRC.
A short introduction to the History of the Democratic Republic of Congo
The recent history of the Congo has long been associated with violence and injustice. With its impenetrable jungles at the heart of the African continent, it has for centuries held a fascination for outsiders. In 1885 during the so called Scramble for Africa, when European countries divided the
! Final Report, UN Group of Experts on DRC, S/2014/41, 2014, para 171. 5
African continent among them, was Congo claimed by King Leopold II of Belgium, who held the country as a personal fiefdom until 1908. Then, the so called Congo Free State was handed over to the Belgium government. Up to this point however, King Leopold II took advantage of the mineral rich territory and unmercifully exploited land and people. Hundred of thousands were forced to work during the rubber boom of the 1890s as the country became a key source of latex for car and bicycle tires. Millions were pushed to death through starvation or disease and hundred of thousands were left mutilated 6.
So gruesome was King Leopolds personal draconian reign over the Congo Free State, that it prompted the first international human rights campaign, led by missionaries and activists such as Edmund Morel, Roger Casement and William Henry Sheppard. The campaign forced King Leopold to hand over the Congo Free State to the state of Belgium. Although the Belgians did not continue King Leopold´s brutality, they nevertheless used the Congo mainly for its resources and did little to prepare the country for its independence. They vested most of the power in white hands with higher positions in the civil service and military being kept for them. In contrast, the Congolese were only educated with the bare minimum - A nation set up to fail after independence 7. As articulated in the
words of Achille Flor Ngoye “I don’t like these uncles mayonnaise fries for their responsibility in the debacle of our country: seventy-five years of colonization, one [Congolese] priest by 1917, five [Congolese] warrant officers in an army of sergeants and corporals in 1960, plus five pseudo-university graduates at independence; a privileged few chosen based on questionable criteria to receive a hasty training to become managers of the country. And who made a mess of it.” 8
After independence in 1960 one of those became the new ruler of the country. Sergeant Joseph Mobutu, a typist and army journalist by training, backed by his cold war western allies, would continue to rule the country for the next thirty-two years. During his ruling he fostered national unity and culture, while neglecting state institutions. After the end of the cold war, Mobutu´s growing human rights violations record led western countries to abandon their old african cold war ally. At the same time Mobutu, faced with internal opposition, became more and more distrustful and paranoid of his own government and army. Then in 1994, the escalation of the neighboring Rwandese civil war that resulted in the genocide of around 800 000 Tutsi by the Hutu ethnic group
! Meredith, Martin: The Fate of Africa: From the Hopes of Freedom to the Heart of Despair: A History of 50 Years of 6
Independence, PublicAffairs, 2005, p. 94-96
! Stearns, Jason K.: Dancing in the Glory of Monsters: The Collapse of the Congo and the Great War of Africa, Public 7
Affairs, 2011, Introduction.
! Achille Flor Ngoye, Kin-la-joie, Kin-la-folie, Paris: L’Harmattan, 1993, 147. 8
occurred. Once the Tutsi were able to regain power, millions of Hutu refugees streamed into eastern Zaire.
Very soon, these refugee Hutu´s got into conflict with Tutsis living in eastern Congo. In addition, the Tutsi movement that overthrew the Hutu government in Rwanda started to clash with the fled Hutu population in eastern Congo. The clashes between these groups triggered the first Congo war in 1996 between Mobutu, who supported the refugee Hutu´s on the one side, and Rwanda and its allies on the other side. The war 9 ended with the overthrow of Mobutu and the installment of
Laurent- Désiré Kabila, backed by Rwanda, as president.
After only one year of peace, the second Congolese war broke out in 1998. As Kabila´s own
socialist, anti-imperialist political aspirations began to grow Rwanda and its allies, fearing to lose its influence, decided to turn against the congolese president. Only through the support of various other African nations was Kabila able to hold on to power. Nevertheless, in 2001 Kabila was assassinated by his own bodyguard and replaced by his son Joseph Kabila, who was embraced by the western powers and still is in power today.
Despite the signing of a peace deal in 2003 and the forming of a transitional government, the absence of strong institutions, corruption as well as the lack of the rule of law have led to the continuation of the conflict in the eastern provinces of the Congo. Today, various armed groups have taken control over the provinces of the eastern DRC, using the mineral trade to finance their campaigns. It is estimated that more than 70 armed groups exist in the Kivu provinces alone 10. Most
of these groups consist of less than 300 fighters, nevertheless they oftentimes exercise governmental powers such as settling land disputes or influencing local political decision-making 11. Some of the
most important armed groups in eastern DRC include for example the Forces Démocratiques de Libération du Rwanda (FDLR). The group was formed in 2000 and was listed in the UN sanctions list in 2012 for serious breaches of international law and human rights violations 12. Also, different
factions of an armed group called Raïa Mutomboki continues to be active in eastern Congo. Just as
! Human Rights Watch: DR Congo: Chronology, 2009, https://www.hrw.org/news/2009/08/21/dr-congo-9
chronology#_Independence, accessed: 25.07.2018.
! Ibid 2. 10
! see for example: Verweijen Judith: A Microcosm of Militarization: Conflict, governance and armed mobilization in 11
Uvira, South Kivu, RVI PSRP Usalama Project Report, 2016.
! Ibid 3. 12
FDLR, Raïa Mutomboki has been accused of serious human rights violations 13. This two examples
of armed groups are just a small proportion of the multiple armed groups present in eastern DRC today.
The Gold Trade in Eastern DRC - From regional to global
Between 2013 and 2015 the Belgian research institute International Peace Information Service (IPIS) visited 1220 mining sites in eastern DRC, which employ around 193 000 miners 14. Some
64% of these mining sites operate in the permanent or regular presence of an armed group 15. Most
instances of armed interference in the mining sites comes through illegal taxation, but also includes forced labour, pillaging of the mines or the establishment of a monopoly over the sale of certain commodities such as cigarettes, beer, soap, etc 16.
It is estimated that the DRC is producing at least 12 tons of artisanal gold each year, valued at around $500 million 17.
Usually the gold supply chain in the eastern DRC starts with artisanal miners working in a pit or a tunnel. These artisanal miners are organized under a so called Président Directeur Général (PDG), who through customary, legal or informal means, has obtained control over the mining site. Sometimes, the PDG finances the mine him-/herself, however, most of the times, they are pre-financed by exporters or external regional buyers. Now, from the mine the supply chain proceeds to Category B négociants (also known as petits négociants, commissionaires, or managers), who move small quantities of material, often half a gram or less. From them the gold proceeds to A négociants, that move larger quantities, up to 10 kg. After that the gold is exported by exporters (possibly a legal comptoir, although more likely an illegal export house), to regional buyers and then to the international market place 18.
Estimates of the UN suggest that 98% of the artisanal mined gold from eastern DRC is smuggled out of the country to the DRC´s neighboring countries such as Uganda, Kenya, Tanzania or Burundi
! Ibid 3. 13
! Weyns, Yannick; Hoex, Lotte; Matthysen Ken: Analysis of the interactive map of artisanal mining areas in eastern DR 14
Congo: 2015 Update, IPIS, 2016, p. 15.
! Ibid, p. 20. 15
! Ibid, p. 21. 16
! De Koning, Ruben; Enough Team: Striking Gold: How M23 and its Allies are Infiltrating Congo’s Gold Trade, 17
Enough Project, 2013, p 1.
! Blore, Shawn: Capacity Building for a Responsible Mineral Trade (CBRMT). Working with Producers to 18
from where it is then reexported to Dubai, which counts among the world´s leading gold trading hubs 19.
Legal Analysis of the Trade in Gold
In general, the governance of natural recourses within a country is governed by the Principle of Permanent Sovereignty over Natural Resources (PSNR) 20 and the right of peoples of
self-determination as found in article 1(2) of the ICESCR and the ICCPR.
These principles establish the right of states and peoples to freely exploit natural resources within a state without the external interference from other states. Most relevant for the purposes of this paper is that states have to ensure to use their resources for the wellbeing of the people of the state
concerned as outlined in the first principle of the 1962 Declaration on the PSNR. In other words the right must be exercised in the interest of the people 21.
Although it is true that during the 1960s and early 1970s the condition to exercise the PSNR in the interest of the people, gradually shifted from a right of peoples and nations 22 to a right of states 23, it
reemerged in political and legal instruments, which addressed resource-related armed conflicts. In 2008 the UN General Assembly adopted a resolution called “Strengthening Transparency in Industries” in which it stated that “every State has and shall freely exercise full permanent sovereignty over all its wealth, natural resources and economic activities” and recalled “its resolution 1803 (XVII ) of 14 December 1962, in which it declared that the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the wellbeing of the people of the State concerned”. 24
Furthermore, the Lomé Peace Agreement for Sierra Leone states that “the Government shall exercise full control over the exploitation of gold, diamonds and other resources, for the benefit of
! Doran, James: The National, Dubai gold trade grows to $70bn, 2013; https://www.thenational.ae/business/dubai-gold-19
trade-grows-to-70bn-1.363516 accessed: 03.06.2018.
! This principle forms part of customary international law. See: International Court of Justice, Armed Activities on the 20
Territory of the DR Congo (Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports 2005, para. 244.
! Declaration on Permanent Sovereignty over Natural Resources, UN General Assembly Res. 1803 (XVII) of 14 21
December 1962. See also, Cassese, Antonio, Self-Determination of Peoples: A Legal Appraisal, Cambridge: Cambridge University Press, Hersch Lauterpacht Memorial Lecture Series, 1995, p. 55.
! General Assembly resolution 1803 (XVII) of 14 December 1962, “Permanent sovereignty over natural resources”, 22
art. 1.
! Resolution adopted by the General Assembly 3281 (XXIX). Charter of Economic Rights and Duties of States, 1974, 23
art. 2. includes the right for “every State” to “freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities”
! A/RES/62/274 (2008), paras. 4 and 5. 24
the people of Sierra Leone.” 25 Other trends to limit the principle of PSNR can be found for example
in Article 3 of the Protocol of the International Conference of the Great Lakes Region Against the Illegal Exploitation of Natural Resources 26 or the UN Security Council Resolution 1457 (2003),
which confirmed the DRC´s sovereignty over its natural resources, to be exploited “transparently, legally and on a fair commercial basis, to benefit the country and its people” 27. In the same way, UN
Security Council resolution 1521 on the situation in Liberia, emphasized that profits from the Liberian timber industry had to be used “for legitimate purposes for the benefit of the Liberian people, including development” 28. Thus arguably the preceding instruments add a vertical
dimension to the traditional horizontal rights of the PSNR creating certain obligations of governments vis-à-vis their population.
Furthermore, the right of peoples as holders of self-determination requires states to set in place procedures to effectively exercise this right 29. For example through the governmental decision
making process with regard to the use of mineral resources. Thus, the principle of PSNR and the right to self-determination of peoples mandate governments to govern the use of their mineral resources in a manner that fulfills their requirements.
However, the right of peoples and states to freely exploit natural resources is challenged in the context of internal armed conflict. As the authority of the legitimate government is contested in an internal conflict, it raises the question whether this body actually still holds the legitimacy and authority to exercise this right 30. Instances where governments lost their legitimacy through their
own actions were for example the cases of the Libyan government or the government of Zimbabwe. In addition, internal armed conflicts also bear the risk that governments are susceptible of losing control over certain areas to armed groups, for example mines. This situation poses a direct
! Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 7 25
July 1999, art. VII.
! Protocol Against the Illegal Exploitation of Natural Resources, adopted by the members of the International 26
Conference on the Great Lakes Region of 30 November 2006, art. 3(1).
! S/RES/1457 (2003), in particular, paragraph 4. 27
! S/RES/1521 (2003), in particular, paragraph 11. 28
! Office of the High Commissioner for Human Rights, General Comment No. 12: The right to self-determination of 29
peoples (Art. 1) 1984, para. 3; UN Doc. CCPR/C/2009/1, 2010: Guidelines for the treaty-specific document to be submitted by States parties under article 40 of the International Covenant on Civil and Political Rights, art. 1.
! see for example: Dam-de Jong, Daniëlla: Armed Opposition Groups and the Right to exercise control over Public 30
challenge to the governing of natural resources through international law as government are no longer able to uphold the basic international law principles for governing natural resources. Furthermore, internal armed conflict poses challenges, in a time when business and human rights issues have become a global policy agenda. In 2005, special representative of the UN Secretary General, John Ruggie, was appointed to develop a business and human rights framework. Due diligence is defined in this UN framework‘Protect, Respect and Remedy’ as ‘a process whereby companies not only ensure compliance with national laws but also manage the risk of human rights harm with a view to avoiding it’ and hence strive ‘to do no harm’ 31. This concept of the human
rights due diligence concept has become the cornerstone in addressing conflict minerals. Ensuring that minerals are traceable and do not benefit armed groups is therefore crucial in achieving this principle. However, this is easier said than done. Particularly in the context of the eastern DRC, which is characterized by a a complex network of artisanal and small scale mining, which largely operate in an informal setting.
Nevertheless, certain national and international initiatives have attempted to address this situation. Their basic aim is to break the link between minerals and conflict by stopping the involvement of armed groups in mineral exploitation. The following section will discuss some of the most
important national and international initiatives in place adopted to apply human rights due diligence and to adopt traceability for gold originating from conflict affected areas.
National and International Initiatives
Most initiatives share common requirements and follow the OECD Guidance on Due Diligence for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (OECD Guidance on Due Diligence) five step framework. This framework was developed to help
companies respect human rights in their mineral sourcing business and intent to support companies establishing transparent mineral supply chains. All this should lead to the halt of financing conflict through minerals 32.
! Ruggie John ‘Protect, Respect and Remedy’, Report of the Special Representative of the Secretary- General on the 31
Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Human Rights Council, A/ HRC/8/5, 2008, p. 9.
! OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk 32
In order to support companies in their mineral business activities the OECD developed a five-step framework for companies to follow in order to assess the risk in the mineral supply chain covering the minerals tin, tantalum, tungsten and gold. (1) establish strong company management systems; (2) identify and assess risks in the supply chain; (3) design and implement a strategy to respond to identified risks; (4) carry out independent third party audit of supply chain due diligence at
identified points in the supply chain; and (5) report on supply chain due diligence 33. These steps
should support companies operating in states struggling with armed conflict to carry out their due diligence assessment as recommended by the Guidelines.
The European Union followed suit and adopted a regulation in 2017 to address the issues of conflict minerals based on the OECD´s five step procedure 34.
Likewise, The London Bullion Metal Association (LBMA), which sets standards regarding purity, trading documentation, form, etc. in the precious metal market 35, adopts the OECD´s five step
framework. Furthermore, it requires members to install “anti-money laundering” 36 and “know your
customer” 37 management systems. What makes the LBMA guidelines especially effective that its
criteria are mandatory for any party wishing to sell within the London Bullion Market.
Moreover, the Responsible Minerals Assurance Process (RMAP), a voluntary way to help companies verify their supply chain up to the smelter, follows the OECD five step procedure. In their review, the auditors address two points. First, the business policy, meaning the companies policies, code of conducts, etc. and their implementation. Secondly, the materials analysis, which analyzes the material in order to demonstrate that for example the source locations are consistent with known mining sites. In the end a list of smelters and refiners that meet the requirements of the
! Ibid. at 17–19. 33
! Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain 34
due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas.
! LBMA, About Us: The Competent Authority for the World Bullion Market, http://www.lbma.org.uk/ 35 about-us accessed: 01.06.2018. ! Ibid 30. 36 ! Ibid, p. 4. 37
independent audit is published on the website, making it easy for companies to identify conflict mineral free smelters and refiners 38.
An initiative, which established its own tracking mechanism, however also inspired by the OECD Guidance on Due Diligence´s five step framework, is The International Conference on the Great Lakes Region (ICGLR). The ICGLR consists of governments, which are most affected by conflict minerals 39. In the Mineral Certification Scheme of the International Conference on the Great Lakes
Region (ICGLR) the states acknowledge the link between conflict minerals and the financing of armed groups that commit serious human rights violations and call it a national and international concern 40. The certification scheme is intended to solve this issue. It seeks to provide a sustainable
conflict free mineral supply chain in the region with the aim of eliminating support to armed groups through conflict minerals 41. The key elements of the tracking scheme are the following: 1. Chain of
custody tracking from mine site to export; 2. Regional mineral tracking using an ICGLR database; 3. Independent third-party audits; 4. An Independent Mineral Chain Auditor 42.
Lastly, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), was enacted as a response to the financial crises and designed to reform the U.S. financial regulations. Section 1502 of the act imposes certain requirements on all companies traded and listed on the US American stock exchange market, regarding certain conflict minerals found in the DRC or adjoining countries. These conflict minerals are defined as “columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivates; or any other mineral or its derivates determined by the Secretary of State to be financing conflict in the DRC or an adjoining country” 43. Products that contain any of
these minerals can only be labeled as conflict free, once it is demonstrated that the minerals used to manufacture them “do not directly or indirectly finance or benefit armed groups in the DRC or an adjoining country” 44.
! Responsible Minerals Assurance Process (RMAP) Smelter Introductory Training and Instruction Document, 38
Responsible Minerals Initiative, 2017, p. 5-6.
! ICGLR, List of governments: http://www.icglr.org/index.php/en/background accessed: 02.06.2018 39
! ICGLR Regional Certification Mechanism (RCM) —Certification Manual, Preamble, p. 2. 40
! Ibid, Section I Purpose and Definitions, p. 4. 41
! Blore, Shawn; Smillie, Ian: Taming the resource curse: Implementing the ICGLR certification mechanism for 42
conflict-prone minerals, PAC, 2011, p. 35-46.
! Dodd-Frank Wall Street Reform and Consumer Protection Act, Section 1502. 43
! Ibid 35. 44
This means that cooperations dealing in minerals form the DRC or adjoining countries, must analyze their supply chains and establish that the minerals are indeed conflict free. The
implementation of the act is led by the Securities and Exchange Commission (SEC), which can require conflict mineral disclosure from companies, which in turn have to audit where their minerals come from.
The feasibility of achieving traceability to source conflict-free minerals through
these initiatives
All of the initiatives discussed in the preceding part try to establish traceability procedures, third-party audits and standards to address the issue of conflict minerals in eastern DRC. The discussion prompted by businesses, NGO´s and governments demonstrate the concern this topic raises and shows the growing pressure on the industry to ensure responsible supply chain management. Nevertheless, despite the concern, the engagement, and the pressure of the various groups,
achieving the traceability of conflict minerals in the easter DRC, remains a complex issue. The next section will focus on the technical aspects of the implementation of the initiatives and will assess their effectiveness in the context of the eastern DRC.
One of the key barriers to the successful implementation of the above mentioned initiatives in the easter DRC are local conditions. This remains true even despite the fact that the government of the DRC has demonstrated its willingness and commitment to improve human rights mineral supply chain due diligence by for instance adhering to the ICGLR. Also did the government issue a directive in September 2011, which compelled mining and mineral trading companies to carry out due diligence supply chain checks in line with international rules such as the OECD due diligence framework in order to prevent the financing of armed groups through conflict minerals such as tin, tantalum, tungsten and gold 45. Nevertheless, the biggest issue that hampers the effective
implementation of such laws remains the local security situation on the ground. This was confirmed by the Public-Private Alliance for Responsible Minerals Trade, which supports supply chain
solutions to conflict minerals originating from the DRC. According to them security seems to be a critical component to ensure the effectiveness of any supply chain initiative 46.
! Government of the Democratic Republic of the Congo , ‘Note Circulaire’, 002/CAB. MIN/MINES/01/2011. 45
! Loch, Mike, Celorie, Jay, Lezhnev, Sasha, Bafilemba, Fidel, Robinson, Richard: PPA Governance Committee 46
Another concern that complicates the implementation of supply chain due diligence measures is the nature of the artisanal mining sector in eastern DRC.
Artisanal exploitation is defined in the 2002 DRC Mining Code as “any activity by means of which a person of Congolese nationality carries out extraction and concentration of mineral substances using artisanal tools, methods and processes, within an artisanal exploitation area limited in terms of surface” 47. The legal requirements with regard to authorized actors, practices, etc. of the artisanal
and small scale mining sector are laid out in the 2002 DRC Mining Code, the 2003 Mining
Regulations and are expanded upon in the Artisanal Miners Code of Conduct which is provided in Annex V of the Mining Regulations. Nevertheless, the knowledge and respect for these laws on the ground is minimal. This is because few of the artisanal and small scale miners do have the time, means, will or knowledge to implement these rules. Furthermore, the penalties in place for
infractions of the mining laws are far beyond the financial capabilities of the miners 48 and given the
constant breaches, do not form any kind of deterrence for the non application of said mining rules. Although in certain areas the Mining code is replaced by a local ‘Foyer Minier’ or ‘Statut de
Reglements, which outline standards for artisanal and small scale miners, they are rarely observed 49.
As a result, the artisanal and small scale mining in the eastern DRC remains largely informal and illegal, which make them prone to abuse.
Attempts to formalize the artisanal mining sector in the eastern provinces of the DRC have been undertaken, however with limited success. According to the Mining Code, artisanal miners have to apply for a one-year Artisanal Mining Exploration Card (carte de creseur) relevant for their
exploration area. In order to receive the card artisanal miners have to undergo certain training, comply with health and safety regulations and pay a fixed fee.
Very few artisanal miners have the necessary capabilities or resources to apply for an Artisanal Mining Exploration Card and thus the major part active in this sector operates without it. Now, as these provisions of the Mining Code are inadequate to address the realities on the ground, they force most artisanal miners to operate illegally. As a result, they also do not enjoy any form of legal protection.
! DRC Mining Code, 2002, p. 4. 47
! DRC Mining Code, 2002, Article 299, Any person engaging in illegal mining activities is liable for a fine of between 48
US$10,000 and US$250,000.
DRC Mining Code, 2002, Article 302: Any person purchasing or selling minerals in contravention of the law will be liable for a fine of US$10,000 and US$30,000.
! Partnership Africa Conada: PROMINES Study Artisanal Mining in the Democratic Republic of Congo, 2010, p. 49
Most importantly, the informality and illegality of the artisanal mining sector leaves the government with little influence. Instead armed groups take over the position as local legislator, inflicting for example taxes on the artisanal miners. Thus the major issue with existing human rights due diligence initiative is that they do not take into account the realities on the ground, where most of the artisanal mine workers operate under informal and illegal circumstances.
Thus the preceding section makes clear that the feasibility of achieving traceability to source conflict-free minerals through these initiatives is limited by (1) the local security situation and (2) by the nature of the artisanal mining in the eastern DRC.
The next section discusses whether a KPCS style model would remedy the situation.
However, before analyzing the KPCS in more detail, it is of importance to understand voluntary codes.
The Role of Voluntary Codes
In general there are four points that make voluntary codes, used in the right circumstances, powerful instruments.
Firstly, their basic rationale is informational. Codes codify generally agreed upon, accepted good practice and thus provide governments with information, which can be trusted as it has been subject to an impartial and thorough analysis.
Secondly, as reform mostly is a highly politicized process and in part a struggle for power, codes can help, as they provide a neutral ground around whom negotiators can discuss generally agreed upon practice and information. Thus, providing a way to divert the power struggle.
Thirdly, codes provide a mechanism for external pressure. Especially if membership becomes the prerequisite for certain action. Once a code is adopted in a certain area it gives an incentive for parties that are active in the area where the code was adopted, to participate.
Lastly, codes, by revealing the parties that are willing to participate in a certain activity, also reveal those governments that do not 50.
Keeping this in mind the next section will deal with the:
!
Kimberley Process Certification Scheme (KPCS)
Against the backdrop of the armed conflicts ranging in Angola and Sierra Leone, where rebel groups used diamonds to finance their military campaigns against the legitimate government, the KPCS was developed 51. Despite the efforts by the UN Security Council to target the export of
diamonds from theses states through sanctions 52, armed groups continued financing their activities
through the export of diamonds, because at that time no effective system to trace the origin of diamonds existed. Thus armed groups could easily exploit the situation, smuggling diamonds into neighboring countries from where they were re-exported to the international market 53.
As a consequence, the KPCS was set up with the aim of finding an effective solution to this international problem. Its basic aim is to come up with an universal certification scheme for rough diamonds. This certification scheme is then applied to states producing and purchasing such
diamonds. They have to verify the origin of the stones they purchase, with the aim of closing off the trade routes for armed groups that deal in so called conflict diamonds.
From the very beginning the involvement of all interested parties was considered crucial for the success of the KPCS. Not only governments, but also the diamond industry and non-governmental organizations participated in the negotiation, which resulted in a partnership between those three different groups. The Kimberley process was launched in 2002 and became fully operational in 2003 54
The following subsections discuss the KPCS in more detail focusing on its objectives, means of operation and enforcement.
Objective
In order to comprehend the scope and objectives of the KPCS it is essential to take a closer look at the definition of conflict diamonds as defined in the Core Document. The former defines conflict diamonds as: rough diamonds used by rebel movements or their allies to finance conflict aimed at
! Dam-de Jong, Daniëlla: International Law and Governance of Natural Resources in Conflict and Post-Conflict 51
Situations, CUP, 2015.
! See S/RES/1173 (1998) and S/RES/1295 (2000) concerning the armed conflict in Angola; S/RES/1306 52
(2000)concerning the armed conflict in Sierra Leone; and S/RES/1343 (2001) concerning Liberia’s involvement in the smuggling of diamonds from Sierra Leone.
! For more information, see UN Doc. S/2000/203, paras. 75–114; UN Doc. S/2000/1195, paras. 65–166. 53
Global Policy Forum: Kimberley Process https://www.globalpolicy.org/the-dark-side-of-natural-resources-st/
54
undermining legitimate governments, as described in relevant United Nations Security Council (UNSC) resolutions insofar as they remain in effect, or in other similar UNSC resolutions which may be adopted in the future, and as understood and recognized in United Nations General
Assembly (UNGA) Resolution 55/56, or in other similar UNGA resolutions which may be adopted in the future. 55
Five points warrant closer examination. The first point, concerns the scope of the definition. It refers to rough diamonds. Rough diamonds differ from others as they are unworked, simply sawn, cleaved or bruted 56. As such the KPCS only targets the diamonds, which are most easily acquired by
armed groups and does not seek to regulate the diamond trade as such. Secondly, the definition only refers to diamonds that are used by non-state armed groups to finance a conflict. This means they do not cover diamonds, which are mined by national authorities even when they are used to finance armed conflict. Thirdly, the KPCS does not only cover diamonds, which are used by rebel
movements, but also by their allies. Thus the KPCS, apart from attempting to eliminate the trade in rough diamonds by armed group, seeks to cut off external support to armed groups. Fourthly, it is important to note that the KPCS aims to eliminate the financing of armed groups by means of diamonds only if they are used to finance conflict aimed at undermining a legitimate government, for example in the form of a rebellion. Thus the KPCS arguably does not cover diamonds used for overthrowing an illegitimate government. Lastly, the reference to the role of the UN Security Council highlights the fact that the KPCS seeks to eliminate conflict diamonds labelled as such by the UN Security Council, thus assigning the UN Security Council an exclusive role 57.
Means of Operation and Enforcement
The KPCS consists of a system of import and export permits for shipments of rough diamonds. Participating states enjoy a large discretion as to how to implement a certification scheme, as long as they meet certain minimum requirements set out by the KPCS. In addition to discretion left to the participants in implement a certification scheme, it is important to note that the KPCS is based on voluntary commitments from the participants and does not impose legally binding obligations on them. These voluntary commitments are aimed to establish a system of internal controls designed to eliminate the presence of conflict diamonds from shipments of rough diamonds imported into and
! KPCS, Section 1. 55
! KPSC, Section 1 56
! Dam-de Jong, Daniëlla: The Role of Informal Normative Processes in Improving Governance over Natural Resources 57
exported from the territory of the participants. 58 Furthermore the Core Document of the KPCS
requires participants for instance to provide other participants with up-to date information on their laws, regulations, rules, procedures and practices 59.
Decision making in the KPCS is made on the basis of consensus by the Plenary, which meats once a year. In the plenary all three groups: participating states, representatives from the diamond industry as well as NGO´s are represented. Decision making, nevertheless is reserved to participating states. However, NGO´s and diamond businesses that are party to the KPCS are allowed to participate in the Plenary and are granted the right to intervene and to submit amendments and proposals 60.
As the KPCS is not a legally binding instrument, it largely depends on the implementation as well as the quality of the implementation of minimal standards for internal controls in the national systems of the participants. Despite being a voluntary system, participants have to uphold the minimum requirement of the KPCS and can be suspended from the process if not 61.
Success and Failure of the Kimberley Process Certification Scheme
The KPCS is an attractive proposition for governments who wish to prevent armed groups to finance their activities through the trade in diamonds. Nevertheless, whether or not the KPCS in reality has been able to live up to its expectations remains contested. While some argue that the KPSC is a success, others are of the view that it has ultimately failed to reach its aim. The next section will discuss the various views.
In 2013 the KP counted 54 participants, representing 81 countries, with the European Union and its 28 Member States constituting a single participant. Together the KP members account for
approximately 99.8% of the global production of rough diamonds 62.
Noting this growth in participation the KPCS was able to reduce the illegal trade in conflict diamonds from around 15 % of the global diamond trade in the 1990s to around 0.4% by 2009 63.
! KPCS Section IV(a). 58
! Ibid, Section V(a) . 59
! KPCS Section VI(5), and the 2003 KP Administrative Decision Rules of Procedure of meetings of the plenary and its 60
AD HOC Working Groups and Subsidiary bodies.
! Guidelines for the Participation Committee in Recommending Interim Measures as regards Serious Non-compliance 61
with KPCS Minimum Requirements, adopted on 5 November 2008. www. kimberleyprocess.com. Accessed 29.05.2018.
! Kimberley Process Participants, https://www.kimberleyprocess.com/en/participants accessed: 01.06.2018. 62
! Burton, Eli G.: Reverse the Curse: Creating a Framework to Mitigate the Resource Curse and Promote Human Rights 63
Angola is cited to be one of the leading members in the fight against conflict diamonds 64. Also
Sierra Leone is oftentimes cited as a success story as the KPCS has helped Sierra Leone maintain peace and has supported its economy through the rise of legitimate trade in diamonds. From 2001 until 2009, Sierra Leone was able to almost quadruple its legitimate exports in rough diamonds worth about US$99 million 65. Also other countries such as the DRC, whose rough diamond export
was valued at US$552 in 2008, benefitted from the KPCS 66.
There also exist other examples of success of the KPCS. For example decided the KP, in its 2003 Administrative Decision on Liberia, only to consider the application made by Liberia, once the UN Security Council decided to lift its sanctions on the diamond trade 67. In collaboration with the
KPCS the UN Security Council lifted the embargo in 2007 68. Today Liberia counts among the
participants of the KPCS. Also, demonstrated the KP its willingness to use the tools at its disposal and, after serious non-compliance had occurred, suspended certain countries such as Lebanon and the DRC 69 in 2004. Likewise, the Central African Republic temporarily expelled from 2013-2015
following attacks on diamond producing areas by an association of rebel group 70.
Furthermore, it is argued that the KPCS helped to support post conflict states through their revenues from the diamond trade through the formalization of the diamond sector. This formalization has led to an increase in legally exported diamonds in producing countries, thus increasing the states income through export tax revenues. Moreover, the formalization of the diamond sector has in a way also contributed to rationalizing the of the diamond sector. For example adjusted the
government of Sierra Leone its mining law in order to limit the number of diamond exporters, giving it more control over the diamond trade. Importantly, as armed groups largely profit from the informality of a given mineral sector and mostly operate through informal channels, formalization
! Michael Allen, The ‘Blood Diamond’ Resurfaces, WALL ST. J. (June 19, 2010) https://www.wsj.com/articles/ 64
SB10001424052748704198004575311282588959188 accessed 05.06.2018.
! Global Witness, ‘Kimberley Process Certification Scheme Questionnaire for the Review of the Scheme’, 2006. 65
! Kimberley Process Secretariat, ‘Annual Global Summary: 2008 Production, Imports, Exports and KPC 66
Counts’ (Annual Report Summary, 7 August 2010);
Wexler, P.: The Kimberley Process Certification Scheme on the Occasion of its Third Anniversary: An Independent Commissioned Review (Review Report submitted to the Ad Hoc Working Group on the Review of the Kimberley Process, February 2006).
! Kimberley Process Certification Scheme, Administrative Decision 3: Liberia, 2003. 67
! UN Doc A/62/543 (2007), appendix 1. 68
! See Christian Dietrich, Hard Currency: The Criminalized Diamond Economy of the Democratic Republic of the 69
Congo and its Neighbors.
! Kimberley Process Certification Scheme, Vigilance Notice, 2013. 70
and rationalization of a mineral sector can help cut the link between armed groups and revenues from diamonds. Apart from this the KPCS has contributed to the larger debate about diamonds with regard to labour practices, health and environmental issues 71.
Nevertheless, despite these successes critics argue that the KPCS has failed in fulfilling its aim. Taking the example of Sierra Leone, critics argue that the country is still very much affected by the evils of the diamond trade. Despite the war being over for more than a decade and the progress made it is estimated that around 10-20 % of Sierra Leone´s diamonds are still being exported illegally 72. In Angola, which was hailed as a “poster child for the global effort to keep ‘blood
diamonds’ out of the international market 73, human rights violations continue. One reason for these
continuing human rights violations is a loophole in the definition of conflict diamonds in the KPCS, which does not account for human rights abuses by the Angolan legitimate government in the mining context 74. Rafael Marques de Morais, an Angolan journalist and prominent human-rights
activist described the situation in Angola in the following words “Diamonds being mined today in Lundas (a province in the north of Angola) are no less bloody than those that funded past wars. Today, my people are being assassinated not to fund a civil war, but out of sheer greed and malignance.” 75 Thus despite the KPCS human rights violation are still prevalent in Angola.
Serious human rights violations have also occurred in Zimbabwe in the Marange area, an area that has been valued as containing the richest diamond value ever found 76. The ZANU-PF ruling party
in Zimbabwe took control over the mines in 2008 massacring around 200 miners 77. Among the
human rights abuses recorded in the Marange mines, are mass rapes, dog attacks or regular
! H. Mitchell: A more Formal Engagement: A Constructive Critique of Certification as a Means of Preventing Conflict 71
and Building Peace. In High-Value Natural Resources and Peacebuilding, Earthscan, 2012, p. 197-198.
! Davidson, Nigel: The Lion that didn´t Roar: Can the Kimberley Process Stop the Diamond Trade? Australian 72
National University Press, 2016, p. 77, footnote 10.
! Ibid, 14 73 ! Ibid 74
! Howard, Audrie: Blood Diamonds: The Successes and Failures of the Kimberley Process Certification Scheme in 75
Angola, Sierra Leone and Zimbabwe, 15 Wash. U. Global Stud. L. Rev. 137, 2015, p. 149, footnote 81.
! Brilliant Earth: Zimbabwe and Blood Diamonds, 2014 https://www.brilliantearth.com/conflict-diamond-facts/ 76
accessed: 04.06.2018
! Berger, Sebastian: Zanu-PF and Zimbabwe Military ‘Profiting from Diamond Massacre’, The Telegraph 2009, https:// 77
www.telegraph.co.uk/finance/newsbysector/epic/gemd/5644252/Zanu-PF-and-Zimbabwe-military-profiting-from-diamond-massacre.html accessed 03.06.2018. “In its report, Diamonds in the Rough, Human Rights Watch says that ‘at least 214’ people were killed at Chiadzwa, and that Zanu-PF used the mineral deposits to reward the military and keep them loyal as Zimbabwe spiralled into chaos.”
beatings 78. Furthermore, corruption prevails in the mines with corrupt police and military guards
employing illegal miners, exposing them to similar human rights abuses 79. Although the KPCS
placed a ban on diamond e originating from Zimbabwe in 2009, because of its human rights abuses, Zimbabwe was reinstated in 2011. Since then, despite the tenuous situation, Zimbabwe was able to continue exporting diamonds legitimated by the KPCS. The Zimbabwean situation, among others led Global Witness, one of the first organizations to commit itself to researching and drawing attention to the issue of conflict diamonds, to end its partnership with the KPCS in December 2011. In a statement made by Chairman Gooch, a Founding Director of Global Witness, he accused the KPCS of having become an accomplice to diamond laundering by not addressing the situations in Zimbabwe, Côte d´Ivoire and Venezuela 80.
What becomes clear from the preceding section is that the KPCS does have its flaws. Nevertheless, it is important to recognize that it contributed to limiting the trade in conflict diamonds 81. In
addition the KPCS is not flawed beyond repair. Criticism with regard to the system´s definition of conflict diamond, the voluntary nature of the framework or the forgery of certificates, is warranted, however fixable.
The following section, will seek to answer the question:
The KPCS, a viable system of traceability for the gold trade in the eastern DRC?
To begin with, it is crucial to understand that the success of any KPCS is dependent on the action of its participants. As the system puts certain minimum requirements in place that have to be followed, participants are required to take action and implement these into their national laws. So must each participant be in a position to effectively control the mining and trade in gold in order to prevent the sale of conflict gold. In other words, essential to the success of a traceability regime are internal controls. Now, particularly in the context of the eastern DRC, certain challenges exist.
! Human Rights Watch: Zimbabwe: Rampant Abuses in Marange Diamond Fields, 2011, http://www.hrw.org/news/ 78
2011/08/30/zimbabwe-rampant-abuses-marange-diamond-fields accessed 06.06.2018.
! Andersson, Hilary: Marange Diamond Field: Zimbabwe Torture Camp Discovered, BBC PANORAMA, 2011, http:// 79
www.bbc.co.uk/news/world-africa-14377215 accessed 06.06.2018.
! Press Release, Charmian Gooch, Global Witness Leaves Kimberly Process, Calls for Diamond Trade to be Held 80
Accountable, 2011.
! Wetzel, Jan Erik: Targeted Economic Measure to Curb Armed Conflict? The Kimberley Process on the Trade in 81
1) The local conditions
A recurring concern, which hampers the effectiveness with regard to traceability initiatives already in place in the eastern DRC, as was already discussed above, are the local conditions. The same goes for the KPCS. As it was already the case in the diamond sector, lack of governmental control over mining sites, resulted in the ineffectiveness of traceability. In contrast, diamond mines under governmental control arguably increases security leading to more official mining operations, therefore, preventing conflict diamonds from entering the international market. This could for example be seen in the case of Botswana, where the government of Botswana keeps a tight control over all diamond sites, with security measures in place as well as after-work searches of all
excavators in order to prevent smuggling 82. However, to ensure the efficiency of this one has to
assume that those overseeing the mines are not corrupt themselves, which is not always the case 83.
In the eastern DRC, the major challenges to establishing a close and non-corrupt government control over the gold mining sites are twofold:
Firstly, just as with diamonds mined in eastern DRC, the mining of gold, unlike the excavation of other natural resources such as oil, cobalt or copper that require industrial machinery, is done by artisanal means without technological assistance. This makes it relatively easy for people to engage in gold mining resulting in hundreds of small mining sites in the eastern DRC. This fact makes it extremely difficult for the government of the DRC to establish effective control and security around the gold mines.
Secondly, as was analyzed by the International Peace Information Center, around 50% of the 800 artisanal gold mines, which they visited were under the control of an armed group 84, which are not
willing to yield to government control. Furthermore, the existence of around 120 armed groups in North and South Kivu alone, exercising control over small and large areas 85, makes the eastern
DRC almost impossible to govern by a government sitting in Kinshasa separated from the easter provinces by 1450 km of dense jungle.
! Fishman, Julie L., Is Diamond Smuggling Forever? The Kimberley Process Certification Scheme: The First Step 82
Down the Long Road to Solving the Blood Diamond Trade Problem, 13 U. MIAMI BUS. L. REV. 217, 225–26, 2005, p. 238.
! Orogun, Paul: Blood Diamonds and Africa's Armed Conflicts in the Post-Cold War Era, 166 WORLD AFF. 151, 83
2004, p. 153.
! International Peace Information Service (IPIS): Analysis of the interactive map of artisanal mining areas in Eastern 84
DR Congo, 2013.
! Ibid 2, p. 5. 85
2) The nature of artisanal gold mining in the eastern DRC
The second major obstacle to effectively obtain assurance of origin in the context of gold mining in eastern DRC is the nature of the large artisanal mining communities, which mostly operate
informally. While it is fairly easy to implement strict internal control over large gold mining companies, the informal artisanal gold mining sector does not allow for such measures. As was already observed in the diamond sector, trade in diamonds originating from developing countries with large artisanal mining areas as for example in Côte d’Ivoire, largely remains unmonitored 86.
Furthermore, as artisanal gold mining in the eastern DRC is largely a poverty-driven activity the label of illegality does not prevent people engaging in that business. As their livelihoods are dependent on working in the gold mines, people oftentimes do not have a choice, but to engage in this business 87.
A good example of how the informality of artisanal mining and its effect on the effectiveness to govern and control artisanal mining is the case of Sierra Leone. In 1956, Sierra Leone implemented the Alluvial Diamond Mining Scheme, which legalized and decriminalized the artisanal mining of diamonds in Sierra Leone. Legal artisanal mining continued after independence until 1968 when Siaka Stevens’ APC (All People’s Congress) took control of the country. As the APC´s autocratic rule discriminated against artisanal miners, they soon began selling their diamonds outside of the legal channels, because that was the only way to survive. Thus, once the artisanal sector lacked well organized internal controls and transparency, smuggling of diamonds became the norm again 88.
Although it is true that this does not constitute an argument agains certification per se, nevertheless, it seems that implementing a tracing scheme before, at least to a certain degree, formalizing the artisanal gold mining sector in DRC, runs the same risk. It would undercut the ability to monitor the artisanal mining activity and thus make it very difficult to verify origin of gold mined in these areas. Furthermore, in many cases governments are too weak and lack the capacity to enforce existing legislation. This is especially the case for countries that suffer from internal armed conflict such as
! Garrett, N.; H. Mitchell; E. Levin: Regulating reality: Reconfiguring approaches to the regulation of trading 86
artisanally mined diamonds. In Artisanal diamond mining: Perspectives and challenges, ed. K. Vlassenroot and S. Van Bockstael. Egmont Royal Institute for International Relations, 2008.
! Van Bockstael Steven; Koen Vlassenroet: From Conflict to Development Diamonds: The Kimberley Process and 87
Africa´s Artisanal Diamond Sites, Studia Diplomatica Vol. LXII, 2009, p. 90.
! Ibid, p.92. 88
the eastern part of the DRC, however, it also can also affect countries without internal armed
conflict if artisnal mining for example takes place in very remote areas. In this regard it is important to note that some governments willingly ignore to implement certain mining laws. For example, although it countries such as Angola and Sierra Leone still suffer from conflict diamonds, the KPCS seems to be more successful there than it is in Zimbabwe, because of the latter´s unwillingness to cooperate in the process. 89
In order to provide meaningful assurance of origin, national and international agencies and organizations must engage with the informal sector on two levels: first by helping to formalize exploitation and trade, and second by providing the informal sector with both the will and the means (that is, with incentives and capacity) to support assurance of origin that meets Western consumers’ standards for origin and quality control.
The preceding section demonstrated that the challenges that need to be addressed in order to implement a traceability regime for gold in the eastern provinces of the DRC are twofold: 1) the security situation on the ground and 2) the nature of artisanal gold mining in eastern DRC. Any system that aims to break the link between armed group and conflict minerals has to take these two factors into account in order to be successful.
The following section will discuss alternatives to a traceability system and whether they constitute a viable solution to address the gold trade in the eastern provinces of the DRC.
1. Diplomacy and Confidence Building Measures
This option constitutes a minimal invasive state to state contact as a response to internal armed conflict. Unfortunately, confidence building measures and negotiations oftentimes circumvent internal armed conflict as a matter of internal sovereignty, unless the the conflict threatens to spill over borders or concerns the oppression of a particular minority group.
Alternatively, one could consider cooperations in the role of peace-broker, however their lack of experience does not make them an ideal candidate for this work. Furthermore, cooperations tend to be aligned to one side and oftentimes depend on their goodwill 90.
! Ibid 75, p. 158. 89
! Wexler, Lesley: Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime, 90
2. United Nations Sanctions
They have been used in the past to address the exports of conflict minerals of certain states 91,
nevertheless their effects have been relatively week 92 as their enforcement was based on
domestic enforcement mechanisms rather than on a comprehensive tracking system. 3. Humanitarian Aid and Military Assistance
States or NGO´s can provide assistance prior or during armed conflict in the form of, for instance humanitarian aid or political and military assistance. Nevertheless, the effects of such measures sometimes is detrimental to the aim they seek to achieve. Humanitarian assistance sometimes is abused by armed groups for their own cause, it can distort local markets and create dependencies. Moreover, political and military assistance can even increase the risk of civil war as was observed in the case of Iraq 93.
4. Regional or International Peacekeeping Missions
One could also consider regional or international peacekeeping missions as another way of approaching internal armed conflict. However, the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo or MONUSCO was condemned for its failure to cope with the situation in eastern DRC 94.
Apart from that, the use of military force, which poses the most direct form of intervention in the eastern DRC is highly unlikely as major powers strongly disfavor the use of military operations, unless vital state interest is at stake.
Considering all of these options and their consequences, emphasize the need for a specific tool capable of addressing the issue, which a Kimberley style code, could deliver, although in a slightly modified form.
! Le Billon, Philippe: Resources and armed conflicts, The Adelphi Papers, 45:373, 2005, p. 4, 44. 91
! Chayes Abram; Chayes Antonia Handler: The New Sovereignty: Compliance with International Regulatory 92
Agreements, HUP, 1998, p. 46, 62.
! Elbadawi, Ibrahim; Sambanis, Nicholas: How Much War Will We See? Explaining the Prevalence of Civil War, 46 J. 93
CONFLICT RESOL., 2002, p. 331-332.
! M.H.A. Menodji: Problematic Peacekeeping in the DRC: From MONUC to MONUSCO, https:// 94
www.globalpolicy.org/security-council/index-of-countries-on-the-security-council-agenda/democratic-republic-of-congo/52244-problematic-peacekeeping-in-the-drc-from-monuc-to-monusco.html accessed 09.06.2018.
A modified Kimberley Process Certification Scheme
1. The need for an independent monitoring system
Currently, the KPCS´s central method to ensure compliance among its members is a peer review mechanism that takes place every three years 95. Now, the issue with these review mechanism is that
the resulting recommendations are oftentimes simply ignored 96, or the review missions themselves
do not capture the realities of a countries situation 97.
In addition, the KPCS requires participating countries to implement its requirements into their national legal systems themselves, including punishments for violation of KPCS requirements and standards. This can lead to abuse by certain governments, which might adopt laws to punish certain actors, however leaves the government itself unaccountable. 98. An independent enforcement
mechanism with uniform punishments could make the KPCS more effective. 99 An independent
enforcement mechanism could for instance be overseen by the United Nations.
Apart from a weak and ineffective compliance mechanism, the KPCS lacks any accountable
authority. Although a chair exists, its powers are limited as it rotates annually and does not hold any responsibility beyond a convening function. Consequently, problems are passed form one working group to another 100.
2. Punishment needs to be uniform
According to section IV of the Core Document of the KPSC, participants are under an obligation to set in place dissuasive and proportional sanctions in response to transgressions 101. The document
does not set a minimum standard, but leaves it to the participants to decide on the measures they want to take. Furthermore, it does not require any kind of uniformity of punishment among the participants. Now, in general this would not constitute an issue if all participants were to implement
! Kimberley Process: Administrative Decision, KPCS Peer Review System, 2012, p. 2. 95
! Partnership Africa Canada: Diamonds and Human Security: Annual Review, 2009, p. 2. 96 ! Ibid, p. 1. 97 ! Ibid, 235. 98 ! Ibid, 236. 99 ! Ibid, 91. 100 ! KPSC, Section 4(d) 101
similar punishments. Nevertheless it leaves open a loophole, where participating countries might adopt punishments of varying degrees. This, instead of deterring the trade in conflict minerals, could in turn lead to a situation in which traders in conflict gold choose a country, where the trade is less severely punished, to operate in. Nevertheless, countries that adopt differing punishments, are compliant with the requirements set out in the KPCS.
Although it is true that the power to decide how to punish individuals for transgressions of the law remains the sovereign power of the state, in order to be truly effective a KPCS style mechanism would have to contain certain minimum requirements for uniform punishment among countries. Just as the KPCS sets minimum requirements for information on each shipments of diamonds, it should set minimum standards in order to ensure uniform punishments among countries.
3. Incentives should be aligned differently
A major problem, which the KPCS encounters are fake certificates. One can find warnings on the website of the KPCS, regarding fake certificates originating from countries such as the DRC, Angola, Malaysia and Ghana 102. Now, it becomes very difficult for traders if they can not be certain
that certificates stemming from certain countries are forgeries or not. The issue is that nations engage in the illegal issuance of such documents, because they are oftentimes rewarded by the rebel groups in one way or another. Thus, once the incentives offered to a government are high enough it can easily forge certain certificates. This means that a KPCS based model would need to find ways to help countries to not to give in to such outside pressure.
One could for instance think about a mechanism which would limit the chief import duties of a gold exporting country. The DRC could for example engage with gold importing nations and work on a trade agreement, where import taxes of certain good would be reduced, in order to incentivize adherence to the KPCS.
Furthermore, one could implement a mechanism into a KPCS style system, which would allow all other members to retaliate against a non-compliant country by for example refusing to import goods from the transgressing country.
!
!
! KPCS: Enforcement, https://www.kimberleyprocess.com/en/enforcement accessed: 05.06.2018. 102
4. A KPSC style model would need a new decision making procedure
Currently the KPCS decision making procedure is made by consensus. This means that any
decision, for instance the expulsion or blocking of a country for non-compliance, can be blocked by any participating member. This was the case with Zimbabwe, which, although recommended for expulsion, was allowed to remain in the KPCS 103.
In order to be effective any model based on the KPCS would have to include a decision making procedure, which would give participating countries an incentive to follow its rules.
Based on the preceding section, the traceability system would need to have the following features in order to, on the one hand address the security situation in the provinces of the eastern DRC, and on the other hand remedy the shortcomings of the KPCS:
1. Regular review visits by an international body made up of gold supply chain experts
It is crucial to monitor the regional supply chain in order to follow the mined gold to processing facilities. Peer reviews should take place not once every few years, as it is the case at the
moment, but on a regular basis in order to ensure that gold arriving in a processing facility actually originates from the mine it claims to come from. Furthermore, regular auditing must be done at the mining source in order to ensure that gold reaching a gold processing facility
originates from mines that are not controlled by armed groups. The artisanal gold mine mapping by IPIS is a good step into that direction and demonstrates, which mines are free from armed groups and which are not.
Review missions should be regular and randomized and should be conducted with the consent of the government of the DRC, however always should contain its independence. As local conditions are difficult review missions are likely to be in need of protection, which could be granted by the government of the DRC or by United Nations peacekeepers.
2. Establishing a secure route from the mine till the export
One of the most difficult stages of the gold supply chain in the eastern DRC, which is abused most of the times, is its way out of the country. Most of the gold mined in eastern DRC is
! Thierry Vircoulon, Time to Rethink the Kimberley Process: The Zimbabwe Case, INT'L CRISIS GRP, 2010; Celia 103
W. Dugger, Africa’s Diamond Trade Under Scrutiny, N.Y. TIMES, Nov. 4, 2009, https://www.nytimes.com/2009/11/04/ world/africa/04zimbabwe.html accessed: 05.06.2018.
