Week of 7 September 2020
When operating in conflict-affected areas, companies have a responsibility to conduct heightened human rights due diligence which includes seeking out conflict-sensitive resources and advisors, incorporating atrocity prevention and conflict prevention tools into due diligence, developing conflict-sensitive operational-level grievance mechanisms, actively engaging local communities and groups, applying a gender-responsive approach, and actively participating in truth and reconciliation processes (UN Working Group on Business and Human Rights)
The UN Working Group on Business and Human Rights released its report Business, Human Rights and Conflict-Affected Regions: Towards Heightened Action which offers new guidance for business on operating in conflict-affected areas with respect for human rights. The guidance “clarifies the practical steps and outlines practical measures that States and business enterprises should take to prevent and address business-related human rights abuse in conflict and post-conflict contexts, focusing on heightened human rights due diligence and access to remedy.” The recommendations in the report were informed by bilateral and multi-stakeholder consultations with States, civil society organizations, business representatives and experts in several regions of the world, as well as research and submissions by stakeholders.
Why this is relevant for companies now
- Conflict is rising around the world. According to the report, “[s]ince the endorsement by the Human Rights Council of the Guiding Principles on Business and Human Rights in 2011, the number of civil wars has almost tripled, with a six-fold increase in battle-related deaths – peaking in 2016 with 53 countries experiencing conflict.” What’s more, “over 71 million people have been forcibly displaced by war, violence and persecution, resulting in the world’s largest humanitarian crisis since the end of the Second World War.”
- Global challenges like resource scarcity, climate change, and pandemics will only exacerbate the number and severity of violent conflicts. In particular, the COVID-19 pandemic is likely to exacerbate existing human rights issues in conflict-affected countries “by taxing the resources of already weak State institutions, complicating peace and development efforts, fuelling inequalities and further impacting the health and safety of vulnerable groups.”
- The UN Guiding Principles (UNGPs) obligate companies to “respect the standards of international humanitarian law in situations of armed conflict” though they “do not specifically mention a different type of due diligence for conflict-affected regions.” Rather, the UNGPs “are built around a concept of proportionality: the higher the risk, the more complex the processes” for due diligence. As a result, the heightened human rights risks caused by violent conflict means that “action by States and due diligence by business should be heightened accordingly.”
“Triggers and indicators” for heightened human rights due diligence
Per the guidance, in determining when heightened human rights due diligence is required, companies and States should look for certain factors that indicate higher risk. These include:
- “Armed conflict and other forms of instability” that occur outside of conflict, such as “serious levels of political volatility, caused by abrupt or irregular regime change, transfer or disputes over power or growing nationalist, armed or radical opposition movements; threats to the security of the country due to armed conflict in neighbouring countries, threats of external interventions or humanitarian crises; even volatility in economic or social affairs caused by acute poverty, mass unemployment or deep horizontal inequalities is relevant.”
- “Weakness or absence of State structures” to protect human rights, for example “the lack of an independent and impartial judiciary, the lack of effective civilian control of security forces and high levels of corruption.”
- “Record of serious violations of international human rights and humanitarian law,” including legacy human rights abuses from previous armed conflicts that “have not been adequately addressed through individual criminal accountability, reparation, truth-seeking and reconciliation processes or comprehensive reform measures in the security and judicial sectors.”
- “Warning signals” that can be predictors of rising instability or armed conflict likely to cause human rights abuses. These may include “the imposition of emergency laws or extraordinary security measures; the suspension of, or interference with, vital State institutions, particularly if this results in the exclusion of vulnerable or minority groups; increased politicization of identity; and increased inflammatory rhetoric or hate speech targeting specific groups or individuals.” The guidance also emphasizes that “[…] due diligence should be heightened when: there are sustained signs of militia or paramilitary groups; States strengthen their security apparatus or mobilize against specific groups; strict control or banning of communication channels; or non-governmental organizations, international organizations, media or other relevant actors are expelled or banned.”
Applying heightened human rights due diligence
A conflict sensitive approach
The UN Working Group underscores that a company’s presence will necessarily influence conflict dynamics, and therefore human rights due diligence “needs to be complemented by a conflict-sensitive approach.” “This involves gaining a sound understanding of the two-way interaction between activities and context, and acting to minimize negative impacts.” Companies can take the following three steps to apply a conflict-sensitive lens and implement heightened due diligence:
- “[I]identify the root causes of tensions and potential triggers, which include the contextual factors such as the characteristics of a country or region that can affect conflict, and the real and perceived grievances that can drive conflict.”
- “[M]ap the main actors in the conflict and their motives, capacities and opportunities to inflict violence, which include affected stakeholders, parties to the conflict and ‘mobilizers’, those people or institutions using grievances and resources to mobilize others, either for violence or for peaceful conflict resolution,” including human rights defenders.
- “[I]dentify and anticipate the ways in which the businesses’ own operations, products or services impact upon existing social tensions and relationships between the various groups, and/or create new tensions or conflicts.”
Finally, companies should consider the impact of operating in conflict-affected areas on stress levels of their own staff.
These three steps should be underpinned by two core principles of human rights due diligence: prioritisation of the most severe human rights impacts, and engagement with rightsholders and diverse stakeholders.
- When it comes to severity, the UN Working Group specifies that companies “need to consider salient risks in terms of both human rights and conflict. Then, because the impact of conflict is usually more severe for more people, businesses should prioritize salient conflict issues which are not identified as salient in terms of human rights.” For instance, “an employee’s religious beliefs may not be the most salient human rights issue in a non-conflict setting, but, if conflict was fuelled by religious divisions, it may well be a salient conflict issue.”
- When it comes to likelihood, the UN Working Group specifies that conflict situations require companies “to think about the likelihood and consequences of conflict as a crucial element: how likely is the issue to create or exacerbate conflict? How severe are the human rights implications of the conflict risks identified?”
Robust stakeholder engagement
Robust stakeholder engagement and grievance mechanisms are all the more important in a conflict setting. The UN Working Group observes that “[t]his sometimes seems counter-intuitive for business which, in a volatile environment, might be tempted to limit interactions with ‘the outside’ in order to be shielded from the conflict or not to be seen as conferring legitimacy on a specific group.” However, “[r]obust stakeholder engagement benefits business directly by increasing its social capital with local communities. It will be particularly important where there are strong connections between such communities and armed groups.” Stakeholder engagement:
- needs to be broad “in order to mitigate the lack of information, the polarization and the high level of mistrust which usually exist among groups and communities.”
- should aim “to get a sense not only of the facts but of the perception of the situation by different stakeholders.”
Additional considerations for business
The report also lists additional considerations that may exacerbate or intersect with human rights issues for companies to consider:
- The involvement of armed non-state actors, such as private security forces (including those contracted by the company or its suppliers and business partners), organised criminal groups or militias.
- How women and girls may be affected differently in conflict situations due to other human rights risks they face, for example “sexual violence, discrimination and pervasive inequality” as well as economic marginalization and lack of land tenure.
- Determining whether and how to make a “responsible exit” from the region, taking into account “the impacts of disengagement with affected people, including business partners and communities” and developing strategies to mitigate adverse effects.
- The report also highlights the unique challenges faced by “captive businesses,” or those companies which cannot choose to exit the country (e.g. those who depend on a particular location-specific natural resource, state-owned enterprises, or enterprises headquartered and entirely operating within the country). Despite these challenges, the report notes that captive businesses can also play an “important reconciliation role” in a post-conflict transition: “Peacebuilding through such businesses may not involve some of the issues associated with multinational enterprises. This is because peacebuilding occurs within the homes and communities of those living in conflict-affected zones. This is a unique benefit as it ensures that, although ‘captive,’ micro-enterprises and small enterprises are able to continue operating.”
Implications for ensuring access to remedy
- The report notes that “transitional justice processes are highly contextual. There is not one single set of ‘best practices’ for business in all conflict/post-conflict settings. Business and human rights responses to these scenarios need to be flexible enough to be context sensitive.”
- Nonetheless, “[t]hose who design transitional justice mechanisms, as well as business, should acknowledge that businesses have a responsibility to remedy their past behaviour. Businesses should engage with relevant transitional justice processes and contribute to truth, reparation and guarantees of non-recurrence where appropriate.”
- There are different avenues to ensure remedy for corporate human rights abuses in the context of conflict, such as: implementing company-level operational grievance mechanisms; ensuring that transitional justice tribunals be given jurisdiction over all actors involved in a conflict, including companies; engaging companies in truth and reconciliation processes when they have no criminal liability; and participating in post-conflict reconstruction and development activities.
Recommendations for business
The Working Group’s report provides six recommendations for business to address human rights risks linked to their operations in the context of armed conflict:
- “Seek advice from embassies and investment and trade-related functions to receive conflict-sensitive advisory services and tools to assist them in respecting human rights in conflict-affected settings.”
- “Engage in heightened human rights due diligence that incorporates tools from atrocity prevention and conflict prevention to augment their existing due diligence frameworks.”
- “Develop operational-level grievance mechanisms that have a conflict-sensitive approach.”
- “Commit to active engagement with local communities and groups in conflict and post-conflict settings.”
- “Ensure that a gender-responsive approach is used to develop heightened human rights due diligence and in grievance, remedy and transitional justice mechanisms.”
- “Actively participate in truth and reconciliation processes and provide reparations and guarantees of non-repetition as part of their commitment to building peace.”