UN Panel of DRC Should Deliver Hard Evidence – or Withdraw Report

Some of the authors of the damming United Nations report on the resource plundering of the DRC, making serious accusations about a number of diamond trading companies, seem to be having “second thoughts”. 

The UN spin-doctors are in full action. I expect that we’ll soon see some “hedging”, some qualifying, though it is unlikely that any of the conclusions will be altered or accusations be dropped.

The problem: due process and the publication of near criminal charges against companies without presenting any evidence.

The United Nation’s “Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo” became already controversial well before it was published. It sure isn’t “Final”. I expect that in the next few days, some kind of letter will be published that will probably raise a number of strictly procedural issues:

(1)       That the final report wasn’t officially approved by all the Panel members;

(2)       That the report is only meant to serve the United Nations and the Security Council and should not serve as a basis for decisions or actions of any third party;

(3)       That the Panel was not authorized to make a judgment on whether multinational companies were violating OECD Guidelines;

(4)       That companies mentioned to be “in violation” of OECD guidelines, were, in reality, not violating guidelines per se, but rather not fully in compliance with the guidelines.

When this letter will be published, this will create an interesting legal situation. What is behind it?

The Report is based on documents and evidence provided by a few hundred parties from over a dozen governments, financial institutions, governmental ministries, intelligence services, private companies, NGO’s, international bodies, you name it – any party only remotely involved on any of the issues has been interviewed by the Panel.

Presented to, and discussed by, the Security Council of the United Nations, after the Secretary-General attached his signature to it, the UN document should rightfully be considered authoritative, trustworthy and, indeed, a report on which people can responsibly make decisions.

And that is exactly what happened. Some banks closed accounts – or gave notice of intention to do so – of some of the companies mentioned. DRC President Joseph Kabila fired virtually every government official implicated by the Panel’s report. Even Managing Director Gary Ralfe of De Beers, at a press conference during the World Diamond Congress in London, made it clear that he doesn’t expect that his clients should be dealing with companies, which the UN report accuses of dealing in conflict diamonds or otherwise illegal behavior. [De Beers itself stood “accused” of violating OECD Guidelines for Multinational Enterprises. Its trading behavior was not questioned at any stage – which is obvious, as De Beers has ceased operating in the DRC some years ago.]

For the United Nations now to say that other parties should not have acted on the report is, basically, a weird and most implausible way to disassociate itself from its own report – or to belittle the charges made by the Panel. 

What happened to create so much unrest around the report? First of all, the Belgian companies mentioned have taken the best possible legal counsel. They have approached the UN demanding either evidence or a retraction/compensation or an apology. As the UN report didn’t publish the evidence on which it based its findings, the UN may find itself in a vulnerable position.

It still doesn’t mean that any of the findings were wrong, which, of course, is something claimed by the accused parties. Why didn’t the United Nations publish the evidence? I got two different answers:

(1)       We never publish the evidence we receive. Our findings speak for themselves and the strength of the reports is based on the moral authority of the United Nations; and

(2)       When we find evidence of criminal conduct, we surely must present that evidence to the authorities in the countries involved and not hinder possible criminal persecution by publishing the evidence.

This may be true in some instances, but the specific circumstances around the DRC report point to a different scenario. I have learned that the Panel was told very late in the day to cut the original report from about double its current size. With that went a lot of the supporting detail, so some companies are named in the annex without the slightest inkling about what they are supposed to have done wrong, or what they might do to fix it. This is also consistent with the observation by a Panel member that the final (59 page) report wasn’t approved. The draft was far more extensive.

The trading companies mentioned in the report may well attempt to refute the charges, but they do so at some risk: at present they don't know what proof the Panel has, because the panel has not published all the details.

Indeed, people involved with the Panel raise no doubts that firms specifically accused of wrongdoings are indeed guilty, but because the UN has given no explanation, the parties’ lawyers are quite right in demanding to see 'the evidence' – or, otherwise, the UN should shut up and/or retract.

The fact that it has been leaked out that there was no unanimity among the Panel members even before the report was published, and that much evidence and a lot of other meaningful material was left out, greatly undermine the credibility of the United Nations past, present and future Panels.

The fight against conflict diamonds is both a serious and a prolonged effort. It isn’t desirable that parties that have already been identified of wrongdoings are “let off” just because the accusing party refuses to release the evidence. At the same time, if some parties are indeed not guilty, these companies should be enabled to lift the clouds that otherwise will remain hanging above their corporate heads for many years to come.