Wednesday, August 12, 2009

Terrorism and money laundering are prominent in the world today. Modern terrorism is all the more worrisome because modern technology has greatly facilitated communication and movement. Many attempts in terms of legislation have been implemented worldwide in an attempt to curb these practices with varying degrees of success.

Money laundering occurs in many guises, including the smuggling of diamonds and precious metals. The smuggling of diamonds from Angola and Sierra Leone to Belgium has led to human rights atrocities. In the DRC the same is now occurring with regards to precious metals smuggled through to Uganda and then to Switzerland.

In an attempt to stop the human rights abuses that have resulted from the trade in blood diamonds, a certification system called the Kimberley Process was implemented in 2002.  The aim of the system is to ban conflict diamonds in the hope that if no market exists for these diamonds, then there would be no point in mining them.

In terms of this process, rough diamonds may only be exported and imported between participants to the process, thereby excluding all other diamonds from world trade. The diamonds must be transported in tamper proof containers and accompanied by a forgery-proof certificate. This certificate certifies that the diamonds are not conflict diamonds. The problem with this system is that it is not an anti-smuggling device and can in fact not guarantee that conflict diamonds have not been relabeled as Kimberley Process diamonds. This is so because the Kimberley process does not prove the source of the diamond. A mere certification system is therefore not sufficient.

The UN has, in an attempt to stop the smuggling of gold in the DRC, suggested a certification system combined with a source identification system. This appears to be a good solution.
To identify source scientists use a technique called laser ablation inductively coupled plasma mass spectrometry to identify the source of precious metals. Ablation means that material is converted directly from the solid phase to the gaseous phase. When the laser ablates a sample, micrograms of material are carried in argon gas into the spectrometer, where the particles are reduced to atoms and ions, each of which has a distinctive mass. A mass spectrum is then collected creating the elemental fingerprint.

The scientific technique was recently used when Russia instituted cases in Western Europe against companies suspected of dealing in stolen platinum-bearing materials. The prosecutions failed because although the scientific procedure existed, and was applied, the procedure had not been independently validated. South Africa thus collaborated with Russia in the analytic and forensic validation of scientific source identification protocols.

A Forensic Review Board comprised of scientists, lawyers and academics from USA, UK, Germany, Sweden, Netherlands, RSA and Russia was established to evaluate the review conducted by two organisations in the Netherlands and Germany. The procedure has been called the Complex Identification Procedure and is separated into 6 protocols. The technique was tested in mixtures, single product samples and multiple product samples and source could be correctly identified in all cases. Consequently, the technique was approved and has been standardised and accredited with the result that expert opinion derived from this evidence is now admissible in court.

A profile is useless if one does not have a database of profiles to compare it to. To this end, South Africa has enacted a Precious Metals Act which requires the establishment and maintenance of a database by the Forensic Laboratory of the SAPS. South Africa appears to be the only country to date which requires this by law. Explosives are also relevant in the context of human rights atrocities and South Africa, as member to the Convention for the Marking of Plastic Explosives for the Purpose of Identification is also the only country that by law requires the maintenance of a database of high explosives marked with chemical markers.

If one compares the explosives laws of various countries, and if one further compares the level of advancement of explosives legislation compared to that of precious metals legislation, stark differences emerge.

The main difference between South Africa’s explosives legislation and that of all other countries with explosives legislation is that South Africa requires a database to be established of all South African manufactured and imported explosives. Databases established in the other countries, if provided for, amount to information on explosives used in crimes, or samples requested by an authority, or consist of a mere list of authorised explosives. South Africa has thus adopted a more proactive approach to crime prevention and detection and it is suggested that this approach should be followed.

Furthermore, while explosives legislation has largely been homogenized in the countries that are party to the treaty, most countries have no precious metal legislation. Thus while the international needs regarding explosives can now be controlled at domestic level, illicit precious metals sales cannot.

Since precious metals smuggling and the resultant financing of terrorism is not a problem unique to the DRC, one can argue that the United Nations should in addition to their current efforts also be considering the formulation of an international treaty to which States can become a party. In terms of the treaty, the mandatory enactment of legislation requiring the establishment of databases and inter-state co-operation would allow crime detection and prevention to be meaningfully supported.

It is suggested that the convention also encompass the establishment of laboratories compliant with the required CIP standards, accreditation of laboratories (registration with a professional council), laboratory procedures to prevent contamination of samples, powers of search and seizure, disposal of seized items, licenses and permits, and sanctions for non-compliance.