Previously, we discussed efforts of UNDP to explore the practical measures businesses could take for respecting human rights in conflict-impacted regions (see Part 1 here ).

We also shared highlights (see Part 2 here ) of the UN Working Group on Business and Human Rights’ October 2020 report that provides recommendations for such businesses with respect to armed state actors, including:

• How to spot red flags of probable conflict;
• How to apply Heightened Human Rights Due Diligence;
• How to engage with a broad range of stakeholders; and
• How to plan for a responsible exit.

In this last part of our story on UNDP’s Development Dialogues of 8 April 2021 and the above Working Group report, we’ll focus on other considerations for businesses, including resources for dealing with armed non-state actors; post-conflict harms; and transitional justice.

Please read the complete Working Group report here for details on all of the above recommendations included in our series, as well as its other important sections on:

• The gender lens;
• “Captive” businesses dependent upon a conflict zone with little chance of relocating because:
  • It is state-owned or is headquartered, founded and run in the conflict zone or
  • It deals in a resource which cannot be found or is difficult to find elsewhere (ex. coltan of Democratic Republic of Congo that’s a key component in electronics); and
• Challenges of the cyber age.

Understand armed non-state actors

Anita Ramasastry, Member of the UN Working Group on BHR, admits that one gray area that needs further study is how businesses seeking to respect human rights may engage with armed non-state actors (ANSAs) while operating on the ground.

While businesses need to “tread carefully,” they’d be forced to engage with such groups who are present in places where their companies operate.

Businesses seeking guidance on this challenge may consult the following two resources that are available online (as of 18 May 2021):

• UN Working Group on BHR’s October 2020 report and
• CDA Collaborative Learning Project’s November 2014 article, “Business and Armed Non-State Actors: Dilemmas, Challenges, and a Way Forward.”

The UN Working Group’s October 2020 report provides the following initial recommendations for businesses seeking to respect human rights:

1. “First, armed groups should be understood… Having a clear understanding of their structure, their control of territory and population, their objectives, their political agenda and the support from the local population are essential to identifying how likely it is that the armed group will interact with the business.
2. “Second, business should have a clear engagement strategy… Businesses need to be aware of the formal classification (under international law and domestic law) of an armed group, particularly when they are designated as terrorist organizations. However, when reality dictates that they must engage with them, they should consider tools developed by relevant initiatives dealing with security and human rights issues, such as the Voluntary Principles, to avoid abuses… Business, like humanitarian groups, may have to engage in dialogue with armed groups and should be prepared to explain their own commitments to human rights and to respect for the well-being of people impacted by their operations.
3. “Third, businesses should strive to maintain impartiality. As mentioned [in previous parts of this article], businesses cannot be neutral actors in a conflict context. This does not mean that businesses should not try to be impartial, including by consistently demonstrating independence from government-led or armed group-led efforts and avoiding any activity or public statement that may be construed as supporting either side of the conflict or as excusing their abuses.
4. “Lastly, business should look to collaborate with other business, non-governmental organizations and the United Nations.”

UNDP and the UN Working Group on BHR are developing a toolkit for businesses in conflict-affected regions, which hopefully would unpack and clarify these broad recommendations.

Meanwhile, CDA Collaborative Learning Projects (note: the linked CDA website is not secure) is also working to address the challenges of Business and ANSAs.

Read their initial findings in the paper, “Business and Armed Non-State Actors: Dilemmas, Challenges, and a Way Forward,” published in the November 2014 edition of Business, Peace and Sustainable Development.

Anticipate post-conflict harms

As regards duties of states and businesses after a conflict, the Working Group’s October 2020 report states:

1. “The reconstruction and peacebuilding phases that a country undergoes after a conflict are clearly part of the conflict, and business and States should apply the same principles, in particular, heightened due diligence, as during the active phase of a conflict…
2. “As the pace of foreign investment often outpaces a host State’s legal framework, and the ability to ensure a meaningful set of human rights protections and rule of law, some experts suggested during the Working Group’s consultations that it might be useful to have a brief pause on investments to allow for a host State to properly ensure that the investment would be rights respecting and not one that would exacerbate conflict..
3. “International financial institutions are particularly active in post-conflict settings. Their focus on attracting investors without building in adequate human rights safeguards and, in some contexts, facilitating investments that involved abuses and provided fuel to reignite old conflicts was an issue flagged during the Working Group’s consultations…
4. “As a minimum, international financial institutions should further align with the Guiding Principles. They should carry out their own heightened human rights due diligence, require this from businesses which have funding and advisory services and prioritize investments involving businesses that are committed to responsible business conduct…
5. “As most reconstruction efforts will be based on contractual arrangements between the host State and the international community, other States or business, or through national reconstruction plans, heightened human rights due diligence should be ingrained at all levels, when treaties and contracts are negotiated and administered and during national policymaking…
6. “The Working Group’s consultation highlighted the critical role that economic institutions, such as local investment boards, play in providing incentives to businesses to act responsibly… In one situation, businesses saw the risks of doing business in an area as being too high because of the conflict. The regional board of investment noted that managing human rights risks would help prevent a relapse into conflict and developed a business sustainability framework which reflected international standards but was based on community engagement in order to include sensitivity to local cultures and values.”
7. “After the conflict, businesses will often have to partner with companies and individuals that have been parties to the conflict, or people who have committed human rights abuses. Screening of relationships is therefore particularly important. The statement of eminent jurists on legal obligations when supporting reconstruction in Syria provides guidance for business in terms of what constitutes responsible engagement (note: the link on footnote no. 69 of the UN Working Group’s report needs updating)…
8. “Business activity should not further institutionalize the impacts of war crimes, for example, by solidifying the status of resettlements where forced displacements along sectarian lines have taken place.”

Participate in transitional justice

Finally, the Working Group’s October 2020 report describes transitional justice processes as a key feature of post-conflict situations.

Transitional justice is a social response to serious and massive violations of human rights and humanitarian law.

It comprises,

“the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. Transitional justice is commonly aimed at providing redress for victims, accountability for perpetrators of past abuses, and identifying and addressing the root causes and structural drivers of violence and repression, such as gender inequality and social exclusion. While transitional justice includes criminal accountability, it is underpinned by a broader understanding of justice that takes into account a range of victims’ needs and societal priorities.”

Some of the report’s transitional justice recommendations for businesses are:

1. “Businesses should engage with relevant transitional justice processes and contribute to truth, reparation and guarantees of non-recurrence where appropriate… [T]he four pillars of transitional justice – each of which represents a form of substantive remediation – should be recognized as an inherent part of the remedy pillarof the Guiding Principles…
2. “Where a business has the dual role of victim and perpetrator, its responsibility to respect and remedy impacts cannot be excused by the fact that it has been a victim at other points of the conflict. This requires States to distinguish between the types of businesses involved in the conflict…
3. “Where businesses incur criminal liability, the obligation to provide remedies goes well beyond symbolic reparations and includes all forms of reparation, in particular restitution (e.g., in the context of land displacement) and compensation. To the extent that symbolic reparations are provided, it must be clear that these do not replace other forms of reparation and that they need to be constructed from the perspective of the victims, not determined by the businesses without consultation…
4. “Even businesses that have not incurred legal responsibility but, for example, benefited from the conflict, should be very strongly encouraged to engage with the truth component of the transitional justice process and provide the full truth about their role in the conflict, even if they acted within the realm of the lawful.
5. “This is important for businesses that might have actively and willingly contributed to serious human rights violations but are not criminally liable simply because criminal corporate responsibility does not exist. In such cases, they should be encouraged to contribute reparations. Engaging with a truth commission can contribute to guarantees of non-recurrence.
6. “[W]here remedies, or business involvement in post-conflict reconstruction, take the form of development measures, it is crucial that there be consultation with the relevant communities where these measures are taking place, to provide development according to their needs and avoid revictimization…
7. “Just like stakeholder engagement, robust grievance mechanisms are more important in conflict-affected contexts. However, it is important for businesses to understand that a grievance mechanism may not be fit for purpose for all circumstances, for example if the allegations involve gross human rights abuses or other serious criminal matters. The International Code of Conduct Association for Private Security Providers, for example, has developed a guidance manual and policy on grievance mechanisms, which provides examples of how security providers should address the issue of reporting crimes to national authorities… (Note: The Working Group report’s link on footnote no. 75 needs updating.)
8. “Businesses should acknowledge that armed conflict will increase the level of risk, and of fear, and make more individuals afraid to report their grievances. Confidentiality of the process, and the security of the peopleaccessing the mechanisms, should therefore be fully secured…
9. “[W]hen grievances and/or complaints may refer to abuses by the army or armed groups against people in the community, employees or contractors, the business “should make the facts known to competent authorities, to avoid any accusation of complicity by omission and can and should communicate to victims or their families the ICRC (International Committee on the Red Cross) contact information for reporting their case…. ICRC and its delegates, in accordance with its own rules, should explain to the victims or their families the course of action to follow, as well as any humanitarian answers ICRC may provide, on a case-by-case basis.”

Consider international humanitarian law

Conflict situations require government and businesses to take into account international humanitarian law, as well.

This is the field of international law that regulates armed conflicts between states and, more recently, between states and informal groups and individuals.

In the 2015 ICRC-Geneva Academy lecture broadcast online below, an international law expert explains how international human rights law and international humanitarian law, while generally complementing one another, may in some situations provide for conflicting rules.

For example, international human rights law prohibits civilians from being brought before military courts. However, this is allowed during armed conflict under international humanitarian law. How may these conflicts of rules be resolved?

To explore these complementarities and tensions, read another practical toolkit for businesses operating in conflict areas that uses a security-focused lens informed by both international humanitarian law and international human rights law. It was developed by Geneva Centre for the Democratic Control of Armed Forces (DCAF) and International Committee on the Red Cross (ICRC): Addressing Security and Human Rights Challenges in Complex Environments (3rd edition).

Watch DCAF and ICRC authors discuss the above toolkit in this webinar by UN Principles for Responsible Management Education (PRME) Working Group on Business for Peace:

The project’s website explains:

“As part of this partnership, DCAF and the ICRC have also developed a Knowledge Hub(www.securityhumanrightshub.org). While the Toolkit and the Knowledge Hub are intended to have a wide application beyond the extractives sector, they were developed to reflect the commitment of both organisations as official Observers to the Voluntary Principles on Security and Human Rights (VPs).”

We (People and Profits) note that the above Voluntary Principles (VPs) were launched by the governments of the US and the UK with their own CSR or human rights networks in the extractive and energy sectors and civil society.

They make no express reference to Business and Human Rights (BHR) with the latter’s “do no harm” pillar for companies.

This is likely the reason why UNDP and the Working Group on BHR is developing its own toolkit: to bridge the above gap between the UNGPs and the VPs by highlighting companies’ duty to respect human rights.

Moreover, the DCAF-ICRC Toolkit does not address issues related to dealing with the presence of armed non-state actors (ANSA) in a company’s area of operations, though the authors shared the above link to CDA Collaborative Learning Project’s initial findings on the topic.

The UNDP and Working Group’s toolkit project could likewise build on these initial findings by harmonising them with BHR and the corporate duty to respect human rights.