At the Kimberley Process (KP) Plenary in Jerusalem, the U.S. played the role of “honest broker” and spent almost a whole week in direct, bilateral negotiations with the Zimbabwe government to reach an agreement on Marange exports.

Except for one issue (that was not directly linked to the KP minimum requirements), full agreement was reached. However, Canada, or actually the country’s Prime Minister’s office, cast the veto. The U.S. had made a tactical mistake not to include other participants and observers in the negotiations, which created antagonism among several KP stakeholders. Though the KP Chair did not allow an extensive Plenary debate, the good news from Jerusalem was that there was a draft agreement on the table that enjoyed wide support.

U.S. Had Change of Heart
In contrast, the policy makers in the State Department were not particularly happy with the Jerusalem Agreement. It became apparent that America was having second thoughts about its own commitments. The “honest” broker had changed its mind. It is for this very reason that a rather angry Europe decided to introduce its own European proposal, which became the initial discussion document presented to a few dozen stakeholders which convened in Brussels to iron out the last remaining obstacles.

As the countries were arguing solely among themselves, and not negotiating with Zimbabwe, it should have been a matter of an hour or so to reach an agreement – and then concentrate on how to convince Zimbabwe to accept whatever was agreed. What in fact happened is that a large number of the participants were actually fighting to avoid eroding those principles that had already received the Zimbabwe approval.  

Truly, the Brussels meeting turned into the weirdest spectacle in the history of the KPCS. Participants were sitting until after midnight solely to seek agreement on the proposal that they were going to present to the Zimbabwe government. A desperate WGM Chairman Stephane Chardone at one point concluded that the KP Chair should be informed that the WGM could not agree on a proposal to be offered to Zimbabwe. It was WDC Chairman Eli Izhakoff who forced the issue by calling for a roll call vote. Almost “sheepishly” everyone turned out to be in favor – or expressing only minor reservations.

The events of the day showed how deeply polarized the various positions are. Through darn hard work, a proposal emerged eventually that actually appears to have a fairly good chance of also being acceptable to Zimbabwe. This achievement should not be belittled.

But then something happened. When the U.S. realized that, actually, there was a solution, it was severely pressured by NGOs and then decided to deliver a “poison pill.” In the middle of the night, the U.S. initiated a one-word change in the proposal, knowing quite well that it would be extremely difficult for Zimbabwe to swallow – albeit not impossible.

At the time of writing this memo, Zimbabwe has yet to receive a copy of the Brussels proposal. There is therefore no way we can actually gauge its reaction – and can only hope for the best.

The Nature of the Poisoned Pill
The Agreement cites the Zimbabwe commitments to ensure the prevention of lawlessness and violence, particularly involving government entities, and ensuring the gradual demilitarization and reduction of smuggling in the Marange area. The U.S. had secured in Jerusalem for Zimbabwe to agree to a self-cessation mechanism. If three members of the Working Group on Monitoring (WGM) file a complaint of a serious breach of such commitments, all exports from Marange would stop automatically. Only if there is a consensus among the other WGM members (excluding the three complainants) that these infringements are not serious enough to warrant such draconian measures, would exports continue. Thus the sanction states have no sole control over a decision to stop exports.

That number “three” is significant. Throughout the discussion, it has become apparent that the so-called principal sanction states (the U.S., Canada and Australia) have demonstrated that they will leave almost no stone unturned to prevent or delay Zimbabwe’s exports of rough. If these three countries would file a complaint and the other members of the WGM would not consider it warranted, there would be a consensus to continue exports.

Hampered by Lack of Trust
At the last moment, the U.S. insisted on reducing the “three” to “two” members. If only two of the sanction countries would file a complaint leading to an export halt, the third one would be able to block a consensus needed to continue the exports. Clearly, the U.S. made that change not without reason – they can make the same calculations as well.

Needless to say, if lawlessness returns to the Marange diamond fields, almost any, if not all, members of the WGM would complain.  That is the way it should be. This is also specifically understood and agreed by Zimbabwe. It underscores the government’s commitment to preventing further human rights violations to recur in the area.

So what is so problematic about the change from three WGM members to two WGM members? It is a matter of trust. The politicization of the KPCS, in which the sanction countries appear to be guided by their own foreign policy considerations rather than serving the overall interests of the Kimberley Process, gives little reason for comfort. These countries may be “trigger happy” and might even elevate a minor infringement (such as a guard dog biting an intruder jumping over a fence of a mining concession) to the level of a major breach, and then non-sanctioned states will not be able to get the exports resumed. If Zimbabwe agrees to the change, it demonstrates a willingness to trust these sanction states – and underscores also their desperate need to get exports going.

Proposal Seems Fair and Decent
By any objective standards, the Brussels proposal is nevertheless a serious piece of work and should be acceptable to the Zimbabwe government. It would be improper for us to comment on other clauses, as the member countries of the KPCS have until tonight (Thursday) to give their agreement to the draft. Only thereafter, late on Thursday or early Friday, the final proposal will be transmitted by the KP Chair to the Zimbabwe government. Let’s hope that the 18 hours or so that the WGM meeting was in session this week was not in vain and that we can move forward.

We believe that the Brussels agreement is the way forward. But what, one may ask, would happen if the Brussels agreement is not acceptable? It is our understanding that then the only way out would be what I have called the “Sheldon Principle” solution, named after the KPCS representative from South Africa.

This solution was first brought up in St. Petersburg and it shocked some Participants – who then quickly moderated their position. Even a “lousy agreement” was preferred to the “Sheldon Principle” solution.

The Sheldon Principle: Solution of Last Resort
The Principle simply refers to the legal situation of the Swakopmund Agreement and the JWP. It runs as follows: If the Brussels meeting fails to reach an acceptable agreement, it should not represent the failure of the KPCS, as some are starting to say again, but, rather, “no agreement” would merely mean the failure of the Administrative Decision on Zimbabwe that was adopted at the Swakopmund plenary, along with its attached JWP.

The KPCS has adopted many Administrative Decisions. Some of them have been more successfully implemented than others. Why accept the failure of the whole KPCS when one could narrow the scope to merely reflect the Decision on Zimbabwe?

The implication thereof is that we go back to the status of pre-Swakopmund when Zimbabwe faced calls for suspension (for which there is clearly no appetite in the KP, as we have seen) – it is going back to the status quo ante. If the Administrative Decision, or the JWP, cannot be implemented because of the absence of a consensus on how to go forward, then we go back to the “way things were before” – to the November 2009 situation.

Under such a scenario, Zimbabwe remains a full KPCS Participant, which has acknowledged that it faces challenges in implementing internal controls, etc. But there will be no agreement on calls for suspension. Either the Brussels meeting managed to deal effectively with the issue of the status of Zimbabwe or it did not, in which case the Administrative Decision could not be implemented effectively given the lack of agreement on how to do so.

In essence: the “Sheldon Principle” would normalize the Zimbabwe situation and the country would operate within the KPCS just like Canada, Australia, DRC or any other producing country. The majority of KPCS Participants would certainly welcome the application of the “Sheldon Principle” solution. It would take the Zimbabwe issue completely from the agenda and would allow orderly rough trade with Zimbabwe. However, it is probably also the last thing Canada, the U.S., Australia or the NGOs would like to happen.

As far as I can read the map, the “Sheldon Principle” will probably remain an untested theory and won’t be needed. Zimbabwe will realize that the proposal is a bitter Pill to swallow – but it is still better than any alternative for itself and the diamond community.