No Reason To Whistle For Joy - This Isn't Over Yet...
January 30, 03"UN Security Council Blows The Whistle On Congo Panel", reads a headline on a press release by the Antwerp Diamond High Council, in reference to a new resolution extending the mandate of the UN experts panel on the illegal exploitation of natural resources in the D.R. Congo. The panel had published a report last October accusing more than 100 companies and individuals of plundering the country.
"The UN Security Council now reprimands the panel", says the press release. Sometimes, good people can read the same documents and draw entirely different conclusions. Whether the terms "whistle blowing" or a "reprimand" are appropriate or merely wishful thinking depends on how one reads the new resolution. Undoubtedly there is a “technical” unprecedented breakthrough. As a result of the public outcry against unsubstantiated allegations the Antwerp Diamond High Council and many others rightfully expressed their outrage that the Security Council panel (1) had failed to contact all the parties mentioned or even ask for their comments and (2) had not publicized the evidence leading to the conclusions nor made the evidence available to the parties concerned. The fact that this outcry was heard and acted upon is certainly encouraging. No doubt that these have led to the following unprecedented Security Council decision.
Paragraphs 11 and 12 of Resolution 1457 (2003) state: "The Security Council invites, in the interests of transparency, individuals, companies and States, which have been named in the Panel’s last report to send their reactions, with due regard to commercial confidentiality, to the Secretariat, no later than 31 March 2003 and requests the Secretary-General to arrange for the publication of these reactions, upon request by individuals, companies and States named in the report of 15 October 2002, as an attachment to this report, no later than 15 April 2003;" and "The Security Council stresses the importance of dialogue between the Panel, individuals, companies and States and requests in this regard that the Panel provide to the individuals, companies and States named, upon request, all information and documentation connecting them to the illegal exploitation of the Democratic Republic of the Congo's natural resources and requests the Panel to establish a procedure to provide to Member States, upon request, information previously collected by the Panel to help them take the necessary investigative action, subject to the Panel’s duty to preserve the safety of its sources and in accordance with United Nations established practice in consultation with the United Nations Office of Legal Affairs."
The Panel had accused De Beers and other mining companies of violating OECD Good Practices Guidelines - something which clearly fell outside of the scope of the Panel's Terms of Reference. The new resolution doesn’t admit that. Quite the opposite: it brings these guidelines within the Panel's scope of investigation. Says Paragraph 14: "The Security Council requests the Panel to provide information to the Organisation for Economic Cooperation and Development (OECD) Committee on International Investment and Multinational Enterprises and to the National Contact Points for the OECD Guidelines for Multinational Enterprises in the States where business enterprises listed in annex 3 of the last report as being allegedly in contravention of the OECD guidelines are registered, in accordance with United Nations established practice."
These issues, however, are not the main points of the new resolution. The Security Council has extended and widened the mandate of the Panel. Financial resources and more time (six months) have been made available to continue the investigations and to review and revisit situations already named. Beyond the previous terms of reference, the Security Council now stresses that the new mandate of the Panel should include: (1) Further review of relevant data and analysis of information previously gathered by the Panel, as well as any new information, including specifically material provided by individuals and entities named in the previous reports of the Panel, in order to verify, reinforce and, where necessary, update the Panel's findings and/or clear parties named in the Panel's previous reports, with a view to adjusting accordingly the lists attached to these reports; (2) Gathering information on actions taken by Governments in response to the Panel's previous recommendations, including information on how capacity-building and reforms in the region are affecting exploitation activities. (3) Making recommendations on measures a transitional Government in the Democratic Republic of the Congo and other Governments in the region could take to develop and enhance their policies, legal framework and administrative capacity to ensure the resources of the Democratic Republic of the Congo are "exploited legally and on a fair commercial basis to benefit the Congolese people."
What we can expect now are two more reports. Within three months, the Panel will have to provide a report on any progress towards the cessation of the plundering of the natural resources of the Democratic Republic of the Congo. After six months the Panel's new findings must be published.
Our sources intimate that the Panel will see this as "an opportunity" to get vindicated and, after publishing the "other side" of the story on behalf of the companies and individuals mentioned, the Panel will have greater freedom in releasing more of its information or allegations. In any scenario: the Panel will have the last word. It is also specifically asked to “update” the lists of names of parties it considers to be involved in illegal activities. The Resolution says that the Panel's new mandate should include: further review of relevant data and analysis of information gathered by the Panel, in order to verify, reinforce and, where necessary, update the Panel's findings, and/or clear parties named in the Panel's previous reports, with a view to adjusting the lists contained therein. There is no clear "reprimand" of the Panel. The opposite seems the case. The Security Council notes "that the reports of the Panel to date have made a useful contribution to the peace process in this regard, and therefore requests the Secretary-General to give a new mandate to the Panel for a period of six months at the end of which the Panel should provide a report to the Council."
How relevant is all of this to the diamond industry? It must be stressed and reiterated that this has nothing to do with "conflict diamonds". The issue has been changed. The issue is responsible exploitation of natural resources in general. The Security Council is concerned about the plundering of the natural resources and other forms of wealth of the Democratic Republic of the Congo since this continues and is one of the main elements fuelling the conflict in the region. It demands that all States concerned take immediate steps to end these illegal activities, which are perpetuating the conflict, impeding the economic development of the Democratic Republic of the Congo, while exacerbating the suffering of its people. It reiterates that the natural resources of the Democratic Republic of the Congo should be exploited transparently, legally and on a fair commercial basis, to the benefit of the country and its people.
We all agree with these objectives. Nobody will argue against further reports and additional monitoring. We feel, however, that if the Security Council truly disagreed with the manner in which the Panel had conducted its affairs or had reached its conclusions, it should have used the opportunity to appoint a new panel - with new, objective individuals. Instead, the Security Council Expresses its full support to the Panel and reiterates that all parties and relevant States must extend their full cooperation to the Panel...
Somehow, it doesn't make sense. Somehow, we don’t expect that the same Panel will suddenly deliver a different product. Somehow, reappointing the same Panel, widening its mandate, and expressing its full support, are not steps pointing to a "reprimand". They certainly do not instill much confidence that the final product will be more objective and accurate. Let's hope that this is not the case.