Document Type

Article

Disciplines

International Law

Abstract

Al-haji Sawaneh, a child living in Sierra Leone, was kidnapped and conscripted into a rebel group.2 Shortly thereafter, he became a member of the Small Boys Unit ("S.B.U.") of the rebel group, participating in a number of horrific crimes against civilians and Sierra Leone's government soldiers. Sawaneh was one of thousands of child soldiers in Sierra Leone who played a major role in a bloody, decade-long civil war that claimed over 75,000 lives.' By the age of twelve, Sawaneh skillfully wielded an AK-47, issued to him because it was lightweight and more manageable for a small boy.4 The BBC reports that "(w)ithout the power of the gun, the guerrillas, and their child recruits, would simply not have been able to terrorize the country in the way they did."5 Even more alarming to the international community, however, is that Sawaneh would not have received the AK-47 had it not been for the exchange of Sierra Leonean diamonds for guns and ammunition.

Now, five years after the Sierra Leone ceasefire agreement, it is an uncontested fact that conflict diamonds' fueled, and continue to fuel, many of Africa's wars.7 This fact has set the framework for numerous reports by various, non-governmental organizations ("NGOs") lambasting the human rights violations linked to the diamond trade.8 The United Nations ("U.N.") issued sanctions toward African nations and their rebel groups who capitalize on revenue from these gems.' Subsequently, the Kimberley Process Certification Scheme, a multi-national diamond trade regulation system mandating certificates of origin, went into effect in 2003.' 0 The Kimberley Process is a direct result of strides made by the diamond industry, NGOs, and various governments to restrict the trade of rough conflict diamonds," and thereby cut off one avenue of funding to rebel groups terrorizing Africa.

Because the Kimberley Process restricts trade to members of the World Trade Organization ("WTO"), it violates certain articles of the GATT treaty. In May 2003, however, the WTO granted a waiver on trade restrictions in order to prohibit the exportation of rough diamonds to non-Participants in the Kimberley Process. The waiver has been reviewed on an annual basis, and was set to expire on December 31, 2006. In December 2006, the WTO extended the waiver for six years.

This Article analyzes the events predicating the Kimberley Process and examines the validity of the Kimberley Process in relation to international trade obligations. Part I describes the background of conflict diamonds and their role in African wars. The section outlines the need for regulation in the diamond industry and examines how other attempted measures at curbing the illicit diamond trade have fallen short. Part II details the Kimberley Process and its guidelines. This section analyzes the relevant U.S. legislation passed in 2003, the Clean Diamond Trade Act. Part II also suggests that because the Kimberley Process ("KP") is predicated upon voluntary compliance, the KP in its current form will have little to no impact on curbing trade in conflict diamonds because its parameters are not legally binding. Part III analyzes whether, despite the current WTO waiver, the KP is a violation of international trade law. This section discusses the use of morality in international trade and proposes that any WTO challenge to the legislation will not stand because the Kimberley Process warrants the general exception to GATT in Article XX(a). 3 Therefore, this section argues that despite its renewal, the waiver is not necessary to preserve the goals of GATT and international trade laws.

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