During UNDP’s Development Dialogues of 8 April 2021, Anita Ramasastry shared how companies and other stakeholders can spot red flags and enhance due diligence in fragile scenarios of conflict and post-conflict.

Ramasastry is member of the UN Working Group on Business and Human Rights.

In October 2020, the above Working Group had presented to the UN General Assembly its report, “Business, human rights and conflict-affected regions: towards heightened action.”

Ramasastry noted that Principle 7 of the UN Guiding Principles (UNGPs) mentions the duty of States in conflict-impacted places:

Because the risk of gross human rights abuses is heightened in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by:

1. • Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships;
   • Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence;
   • Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation;
   • Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.

As there’s been little guidance on the role of the private sector in conflict-affected regions, Ramasastry explained that their Working Group picked up where UNGPs left off.

It unpacked Principle 7 and investigated what further things need to be done to help businesses respect human rights in politically volatile areas.

The Working Group’s report concluded that, in situations of armed conflict, enterprises have a duty to respect international humanitarian law and international criminal law.

What practical steps may profit-maximising companies take, then, to fulfil this obligation and international expectation?

Recommendations of the UN Working Group’s October 2020 report focusing on armed state actors are restated or summarised below (emphasis ours).

Spot red flags

Practice situational awareness.

Scan your business and supply chain areas of operation for any inter-community conflicts.

Be sensitive to underlying triggers or indicators that may lead a reasonable person to believe that there’s a higher-than-normal risk of conflict (that would warrant Heightened Human Rights Due Diligence):

1. Armed conflict and other forms of instability
2. Weakness or absence of state structures
3. Record of violations of international human rights and humanitarian law
4. Warning signals like:
   1. Steps being taken toward mass violence, such as amassing of weapons and arms
   2. Events and measures that could lead to serious human rights abuses, such as:
      1. the imposition of emergency laws or extraordinary security measures;
      2. the suspension of, or interference with, vital State institutions, particularly if this results in the exclusion of vulnerable or minority groups;
      3. increased politicization of identity; and
      4. increased inflammatory rhetoric or hate speech targeting specific groups or individuals.
   3. When:
      1. there are sustained signs of militia or paramilitary groups;
      2. States strengthen their security apparatus or mobilize against specific groups;
      3. strict control or banning of communication channels; or
      4. non-governmental organizations, international organizations, media or other relevant actors are expelled or banned.

Escalate due diligence

If one or more of the above red flags listed above are present, companies would fulfil their duty to respect human rights by taking the following steps:

1. Integrate a conflict-sensitive approach to human rights due diligence, first, by understanding that “(b)usinesses are not neutral actors; their presence is not without impact. Even if business does not take a side in the conflict, the impact of their operations will necessarily impact conflict dynamics.”
2. Apply enhanced or heightened human rights due diligence (HHRDD):
   1. “(F)irst, 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. This conflict analysis will help identify the human rights abuses or impacts that may arise due to the conflict and not just (due to) business operations.”
   2. Second, map 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.
      1. “Business should pay particular attention to human rights defenders, those ‘individuals or groups that, in their personal or professional capacity and in a peaceful manner, strive to protect and promote human rights.’ In conflict-affected contexts, human rights defenders may share the same claims as a party to the conflict but advocate for rights holders in a peaceful manner.
      2. Business should therefore be careful to differentiate between the above two (parties to the conflict and human rights defenders), and not expose human rights defenders to undue risks, for example by initiating frivolous legal proceedings or reporting them to authorities (who may violate their legitimate rights).”
   3. “Third, identify 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.”
3. “Additionally, business should not underestimate the impact of operating in conflict-affected areas on their own staff. They should ensure that the people assigned to complex operations are equipped with a proper understanding of conflict dynamics in the region and have the capacity and support required to manage the stress of such environments.”
4. Prioritize which impacts to address first. According to the Guiding Principles, the order in which impacts are addressed is based on their severity. In conflict situations, prioritization requires businesses 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?
5. Businesses need to prioritize addressing, first, salient risks in terms of both human rights and conflict. Second, because the impact of conflict is usually more severe for more people, businesses should prioritize salient conflict issues even if they’re not identified as salient in terms of human rights (ex. An employee’s religious beliefs in the context of conflict fuelled by religious divisions). Finally, businesses should address salient human rights issues that are unlikely to cause or exacerbate conflict.
6. Engage with a broad range of stakeholders and establish grievance mechanisms at the earliest stage.
   1. “Stakeholder engagement needs to be broad in conflict-affected contexts, in order to mitigate the lack of information, the polarization and the high level of mistrust which usually exist among groups and communities, and to get a sense not only of the facts but of the perception of the situation by different stakeholders.”
   2. “The challenge and the need for good stakeholder engagement is well summed up as follows: ‘Managers are often trained to get to the truth of the matter. An environmental engineer must establish where unsafe levels of arsenic in drinking water are coming from. Yet in complex environments, there may be great value in simply listening to people’s different stories. They can teach us how people see themselves and others; what divides them and what connects them; how different pieces of a system may fit together; and even how some people may be manipulating stories to achieve certain goals.’ “
7. Plan for a responsible exit scenario.
   1. “The first step is therefore to anticipate and plan a clear exit strategy in advance. This will allow the business to identify and assess the impacts of disengagement with affected people, including business partners and communities, and to develop mitigation strategies.”
   2. “These (mitigation strategies) may include:
      1. providing reasonable notice to communities, suppliers, workers and other partners of the pending disengagement;
      2. ensuring that staff continue to receive income for the duration of the crisis, in the event of temporary suspension or training, and capacity-building to mitigate the loss of employment; and
      3. ensuring the security of remaining staff who cannot be evacuated.”
   3. “If a business is offering ancillary services or philanthropic programmes, it must mitigate the effects of its exit, for instance by providing for hand over to an adequate entity, such as a civil society actor.”

Complement BHR with conflict prevention

In sum, during times of peace when the risk of violent conflict is low, States, businesses and other stakeholders may feasibly apply the UNGPs, including companies’ ordinary Human Rights Due Diligence.

In conflict or post-conflict situations, States should follow UNGPs’ Principle 7.

Businesses seeking to respect human rights in such scenarios, meanwhile, would need to practice Heightened Human Rights Due Diligence and complement BHR with other approaches and frameworks that informed the October 2020 report of the UN Working Group on BHR, including:

• conflict prevention;
• conflict resolution;
• peacebuilding;
• mediation;
• international humanitarian law;
• Voluntary Principles (for extractives and energy sectors); and
• International Finance Institutions’ heightened HRDD/contextual risk assessment.

In Part 3 of this series, we’ll further discuss BHR during post-conflict situations and periods of transitional justice, as well as the UN Working Group on BHR’s initial comments on best practices for companies facing the challenge of dealing with armed non-state actors.

(To be continued in Part 3.)

Read Part 1 of this news story.

Or watch this related resource:

An Evaluation of UNDP Support to Conflict-Affected Countries (4 mins., uploaded on YouTube by UNDP Independent Evaluation Office (IEO) last 31 March 2021):

Access IEO’s report and illustrated summary here.

Please note that the above IEO-linked webpage did not have a secure connection during our last visit on 28 April 2021.