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Respecting Human Rights in Conflict Regions: How to Avoid the ‘Conflict Spiral’

  • Andreas GRAF and Andrea IFF
Abstract

This article introduces a novel way in which human rights due diligence can be ‘enhanced’ to respond to business and human rights challenges specific to conflict affected areas. It makes two key arguments. First, it claims that a crucial and often neglected factor for understanding human rights risks in conflict affected areas is that businesses face escalating and largely unpredictable human rights risks once they become involved in conflict. Second, the article shows how integrating aspects of the well-established method of conflict sensitive business practice into human rights due diligence can help companies address this challenge. For instance, companies should include a conflict analysis in human rights impact assessments and systematically identify and address their actual or potential impacts on conflict. This article provides support to a UN Working Group proposal for the integration of conflict sensitive business practices into human rights due diligence.

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University of Basel, [andreas.graf@swisspeace.ch].

**

University of Pennsylvania, [aiff@sas.upenn.edu].

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1 The authors wish to thank the two anonymous reviewers and the editors of the Business and Human Rights Journal for their very helpful comments on earlier versions of this article.

2 See, e.g., Deva, Surya, Regulating Corporate Human Rights Violations: Humanizing Business (New York: Routledge, 2012).

3 We understand conflict affected areas as regions where violent conflict is ongoing, where the risk of conflict outbreak is high, or where societies are emerging from violent conflict (Ben Fowler and Adam Kessler, ‘Measuring Achievements in PSD in Conflict Affected Environments: Practical Guidelines for Implementing the DCED Standard’, Donor Committee for Enterprise Development (2015)). High risk areas are understood as regions of political instability or repression, institutional weakness, insecurity, collapse of civil infrastructure and widespread violence (see OECD, ‘Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas’ (2013).

4 Bennett, Juliette, ‘Multinational Corporations, Social Responsibility and Conflict’ (2002) 55 Journal of International Affairs 2 ; Martin-Ortega, Olga, ‘Business and Human Rights in Conflict’ (2008) 22 Ethics & International Affairs 3 .

5 See, e.g., Börzel, Tanja A and Risse, Thomas, ‘Governance without a state: Can it work?’ (2010) 4 Regulation & Governance 2 ; Acemoglu, Daron and Robinson, James A, Economic Origins of Dictatorship and Democracy (Cambridge: Cambridge University Press, 2005); Frynas, Jedrzey G, ‘The false developmental promise of corporate social responsibility: Evidence from multinational oil companies’ (2005) 81(3) International Affairs 581598 .

6 See, e.g., Billon, Philippe Le, Fuelling War: Natural Resources and Armed Conflicts (New York: Routledge, 2013); Goodhand, Jonathan, ‘From war economy to peace economy? Reconstruction and state building in Afghanistan’ (2004) 58 Journal of International Affairs 155 .

7 See, e.g., Tripathi, Salil, ‘Business in Armed Conflict Zones: How to Avoid Complicity and Comply with International Standards’ (2010) 50(4) Politorbis ; Lubell, Noam, ‘Challenges in applying human rights law to armed conflict’ (2005) 87 International Review of the Red Cross 860 ; Olson, Danielle, ‘Corporate Complicity In Human Rights Violations Under International Criminal Law’ (2015) 1(1) International Human Rights Law Journal ; Hassan, Zaha, ‘When Caterpillars Kill: Holding US Corporations Accountable for Knowingly Selling Equipment to Countries for the Commission of Human Rights Abuses Abroad’ (2004) San Diego International Law Journal 6 ; Oetzel, Jennifer et al, ‘Business and Peace: Sketching the Terrain’ (2009) 89 Journal of Business Ethics 4 ; Ramasastry, Anita, ‘Corporate Complicity: From Nuremberg to Rangoon - An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations’ (2002) Berkeley Journal of International Law 20 .

8 See, e.g., Zandvliet, Luc and Anderson, Mary B, Making Corporate-Community Relations Work (Sheffield: Greenleaf Publishing 2009); Martin-Ortega, note 4; Kolk, Ans and Lefant, FrançoisMultinationals, CSR and Partnerships in Central African Conflict Countries’ (2013) Corporate Social Responsibility and Environmental Management 20 .

9 See, e.g., International Alert, ‘Conflict-Sensitive Business Practice: Guidance for Extractive Industries’ (2005); UN Global Compact and PRI, ‘Guidance on responsible Business in Conflict-Affected and High risk Areas: A Resource for Companies and Investors (2010); Institute for Human Rights and Business, ‘From Red to Green Flags: The Corporate Responsibility to Respect Human Rights in High Risk Countries’ (2011); Geneva Centre for the Democratic Control of Armed Forces and International Committee of the Red Cross, ‘Addressing security and human rights challenges in complex environments’, second edition (2015); Shift Project, ‘Human Rights Due Diligence in High Risk Circumstances’ (2015).

10 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework’, A/HRC/17/31 (21 March 2011).

11 Addo, Michael K, ‘The Reality of the United Nations Guiding Principles on Business and Human Rights (2014) Human Rights Law Review 14 .

12 Human Rights Council, note 10, 20.

13 See Guiding Principles 17–21, ibid, 16–20.

14 See Guiding Principle 22, ibid, 20.

15 See Guiding Principle 14, ibid, 14.

16 The UNWG was created in June 2011 by the UN Human Rights Council after the endorsement of the UNGPs. Its mandate consists, inter alia, of promoting the effective and comprehensive implementation of the UNGPs (see Human Rights Council, ‘Resolution 17/4 on human rights and transnational corporations and other business enterprises’, A/HRC/RES/17/4 (6 July 2011) at 2–3). The mandate of the UNWG was renewed by the UN Human Rights Council in July 2014 (see Human Rights Council, ‘Resolution 26/22 on human rights and transnational corporations and other business enterprises’, A/HRC/RES/26/22 (15 July 2014)).

17 OHCHR, Mandate of the Working Group on the issue of human rights and transnational corporations and other business enterprises, ‘Statement on the implications of the Guiding Principles on Business and Human Rights in the context of Israeli settlements in the Occupied Palestinian Territory’ (6 June 2014) 9.

18 Conflict Sensitivity Consortium, ‘Conflict Sensitivity Resource Pack’ (2004).

19 See, e.g., International Alert, note 9.

20 See, e.g., UN Global Compact, ‘Enabling Economies of Peace: Public Policy for Conflict-Sensitive Business’ (April 2005).

21 See, e.g., Anette Hoffmann, ‘From “business as usual” to “business for peace”? Unpacking the conflict-sensitivity narrative’, Clingendael Institute, CRU Policy Brief No. 28 (February 2014).

22 Human Rights Council, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights; Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises’, A/HRC/8/5 (7 April 2008) 14.

23 Human Rights Council, ‘Report of the SRSG on the issue of human rights and transnational corporations and other business enterprises – business and human rights in conflict-affected and high risk regions: challenges and options towards state responses’, A/HRC/17/32 (27 May 2011) 5.

24 OECD, note 3.

25 Graf, Andreas and Iff, Andrea, ‘Conflict-Sensitive Business: Review of Instruments and Guidelines’, Swiss Peace Foundation swisspeace (2014).

26 Assembly, General, ‘Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises’, A/69/263 (5 August 2014) 14 .

27 While there is so far no debate on the relation between a human rights-based approach and conflict sensitivity in the business realm, there is substantial discussion on this topic in the field of development cooperation. See, e.g., Parlevliet, Michelle, ‘Rethinking Conflict Transformation from a Human Rights Perspective’ in Beatrice Austin, Martin Fischer, Heinz J Giessmann (eds.), Berghof Handbook Dialogue Nr. 9 (Opladen/Framington Hills: Barbara Budrich Publishers, 2010) 17 .

28 This is particularly the case with regards to initiatives which relate to the OECD’s due diligence guidance on responsible supply chains (OECD, note 3). These include, for instance, the current and planned regulations on conflict minerals in the EU and the US, as well as industry-led initiatives such as the Conflict-Free Gold Standard or the Conflict-Free Smelter Program.

29 See Guiding Principle 7, Human Rights Council, note 10, 10–11.

30 The UN Guiding Principles in Principle 7 refer to ‘conflict affected areas’ to describe areas in which risks to companies are particularly high due to conflict. We use in this article the term ‘conflict affected and high risk areas’ in order to be explicit that conflicts, especially company-community conflicts may also arise in areas where there is no pre-existing violent conflict. We thereby use the definition of the OECD such as referred to in its Guidance for responsible supply chains of minerals from conflict-affected areas (OECD 2011, note 3, 13).

31 See Guiding Principle 7, Human Rights Council, note 10, 10–11.

32 See Commentary to Guiding Principle 7, ibid, 11.

33 See Guiding Principle 7, ibid, 10.

34 See Commentary to Guiding Principle 23, ibid, 21.

35 See, e.g., Le Billon, note 6.

36 Miaari, , Sami, , Zussman, Asaf, and Zussman, Noam, ‘Ethnic conflict and job separations’ (2012) 25 Journal of Population Economics 2 .

37 See, e.g., Zandvliet and Anderson, note 8; Kemp, Deanna et al, ‘Just relations and company-community conflict in mining’ (2011) 101 Journal of Business Ethics 1 .

38 Ibid.

39 Freeman, Bennett, Pica, Maria B and Camponovo, Christopher N, ‘New Approach to Corporate Responsibility: The Voluntary Principles on Security and Human Rights’ (2000) Hastings International & Comparative Law Review 24 .

40 Kobrin, Stephen J., ‘Oil and politics: talisman energy and Sudan’ (2003) New York University Journal of International Law & Politics 36 ; Patey, Luke ALurking beneath the surface: Oil, environmental degradation, and armed conflict in Sudan’ in Päivi Lujala and Siri Aas Rustad (eds.), High-Value Natural Resources and Post-Conflict Peacebuilding (Routledge, 2012).

41 Davis, Rachel and Franks, Daniel, ‘The Cost of Conflict in the Extractive Sector’ (2014) 16 .

42 Rees, Caroline et al, ‘Conflict Management and Corporate Culture in the Extractive Industries: A Study in Peru’, Corporate Social Responsibility Initiative, Mossavar-Rahmani Center for Business and Government, Report 50 (September 2012).

43 See, e.g., the case of Talisman Energy and their operations in South Sudan: Special Rapporteur of the Commission on Human Rights, ‘Situation of Human Rights in the Sudan’ UN General Assembly, 7 September 2001. A/56/336. para 52; Switzer, Jason, ‘Oil and violence in Sudan’; John Harker, ‘Human Security in Sudan: The Report of a Canadian Assessment Mission’ (2002) Department of Foreign Affairs and International Trade (DFAIT).

44 See, e.g., the case of Lonmin following the killing of more than 40 people during a strike at the platinum mine in Marikana, South Africa ( Sorensen, Paul, ‘The Marikana Tragedy69 International Journal of Environmental Studies 6 ).

45 As an example, the timber company Danzer … surrounding their operations. For an overview on the case of Danzer and SIFORCO see ‘Danzer Group lawsuit (re Dem. Rep. Congo)’, 8 July 2013, http://business-humanrights.org/en/danzer-group-siforco-lawsuits-re-dem-rep-congo#c86298 (accessed 3 February 2016).

46 Black’s Law Dictionary, 8th edition (2008).

47 Human Rights Council, note 22, 17.

48 See Guiding Principles 17–21, Human Rights Council, note 10, 16–20.

49 See Guiding Principle 17(c), ibid, 16.

50 According to the online Cambridge Business English Dictionary, due diligence is defined as ‘the detailed examination of a company and its financial records, done before becoming involved in an arrangement with it, such as buying it or selling its shares to investors’. Online Cambridge Business English Dictionary, http://dictionary.cambridge.org/dictionary/business-english/ (accessed 3 February 2016).

51 De Schutter, Olivier et al, ‘Human Rights Due Diligence: The Role of States’ (December 2012).

52 General comment No. 31, para 8, reproduced in ‘Compilation of General Comments and general recommendations Adopted by Human Rights Treaty Bodies’, UN Doc. HRI/GEN/1/Rev.7 (12 May 2012).

53 This understanding corresponds to the decision by the Inter-American Court of Human Rights in Velasquez Rodriguez, which confirmed in 1988 that states could be held responsible for private acts where they fail to act with ‘due diligence’ to prevent or respond to violations. See Velasquez Rodriguez Case, Judgment of 29 July, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988) paragraphs 166–74.

54 Anderson, Mary B, Do No Harm: How Aid Can Support Peace - Or War (Boulder: Lynne Rienner Publishers, 1999).

55 Paffenholz, ThaniaPeace and conflict sensitivity in international cooperation: an introductory overview’ (2005) 4 Internationale Geschichte und Politik 63 .

56 The OECD DAC is the Development Assistance Committee of the OECD. It includes the world’s major donors and aims to contribute to effective development by increasing transparency of development finance and helping to improve development co-operation practices and policies.

57 OECD DAC, Helping Prevent Violent Conflict: Guidelines (Paris: OECD, 2001).

58 Goldwyn, Rachel and Chigas, Diana, Monitoring and Evaluating Conflict Sensitivity: Methodological Challenges and Practical Solutions (Cambridge, MA: CDA, 2013).

59 See Reychler, Luc, ‘Humanitarian aid for sustainable peace building’ in Pat Gibbons and Brigitte Picquard (eds.) Working in Conflict – Working on Conflict: Humanitarian Dilemmas and Challenges (Bilbao: University of Deusto, 2006) 135 ; African Development Bank Group, Evaluation of the Assistance of the African Development Bank to Fragile States (Abidjan: African Development Bank, 2012).

60 See http://www.unssc.org/home/conflict-sensitivity-online-course (accessed 3 February 2016). In addition to the UN efforts on mainstreaming conflict sensitivity, similar processes are underway within the EU and the African Development Bank.

61 Allouche, Jeremy and Lind, Jeremy, Beyond the New Deal: Global Collaboration and Peacebuilding with BRICS Countries (Brighton: IDS, 2014); McCandless, ErinWicked Problems in Peacebuilding and Statebuilding: Making Progress in Measuring Progress Through the New Deal’ (2013) 19 Global Governance 227 ; Nussbaum, Tobias, Zorbas, Eugenia and Koros, MichaelA new deal for engagement in fragile states’ (2012) 12 Conflict, Security and Development 559 .

62 The central aim of the New Deal is to define a development architecture and ways of working in development cooperation which are better tailored to the situation and challenges of fragile contexts and thereby contribute more effectively to build peaceful states and societies (see International Dialogue on Peacebuliding and Statebuilding, ‘A New Deal for Engagement in Fragile States’, DAC-INCAF (2012).

63 See, e.g., Global Witness, ‘A rough trade’ (1998); Human Rights Watch, ‘The price of oil’ (1999).

64 While the guidance for extractive industries was by far the most comprehensive one, International Alert together with various partners in later years also developed guidance for engineering contractors and their clients, as well as on project finance (See Graf and Iff, note 25).

65 UN Global Compact, note 20.

66 See http://www.business4peace.org (accessed 3 February 2016).

67 The International Bill of Human Rights such as understood in the UNGPs consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (see Commentary to Guiding Principle 12, Human Rights Council, note 10, 13).

68 See Guiding Principle 12, Human Rights Council, note 10, 13–14.

69 International Alert, note 9, 14.

70 Human Rights Council, note 22, 9.

71 See Commentary to Guiding Principle 11, Human Rights Council, note 10, 13.

72 Human Rights Council, note 22, 3.

73 Ruggie mentions, for instance, situations where companies perform certain public functions, or where they have undertaken additional commitments on a voluntary basis (See Human Rights Council, note 22, 9).

74 Andrea Iff, Rina Alluri and Sara Hellmüller, ‘The Positive Contributions of Businesses in Transformations from War to Peace’, Swiss Peace Foundation swisspeace, Bern (2012).

75 See Guiding Principle 17, Human Rights Council, note 10, 16–17.

76 See Commentary to Guiding Principle 18, Human Rights Council, note 10, 17.

77 See Guiding Principle 13, ibid, 14.

78 See, e.g., International Business Leaders Forum and IFC, ‘Guide to HRIAM’ (September 2011); Danish Institute for Human Rights, ‘Human rights compliance assessment’, Nestle and DIHR, ‘Talking the Human Rights Walk: Nestlé’s Experience Assessing Human Rights Impacts in its Business Activities’ (2013).

79 Since 2005, several such guidance documents addressed specific business sectors such as extractive industries. See, e.g., International Alert, note 9; Andrea Iff, ‘Conflict Sensitivity Due Diligence. Manual for Timber Companies in the Congo Basin’, Swiss Peace Foundation swisspeace (2014).

80 Anderson, note 54.

81 Zandvliet and Anderson, note 8.

82 Anderson, note 54.

83 Some of these factors could arguably be relevant for the human right to development. The point here is however that in practice, these impacts tend to be overlooked in standard human rights impact assessments due to a narrow focus on the direct relations between companies and rights holders.

84 See, e.g., Conflict Sensitivity Consortium, note 18, 27–31; or International Alert, note 9, 56.

85 See Commentary to Guiding Principle 19, Human Rights Council, note 10, 18–19.

86 The commentary to Guiding Principle 19 further specifies four factors that should determine appropriate action in cases where a company is involved in an adverse human rights impact through its business relationships. They include the enterprise’s leverage over the entity concerned, how crucial the relationship is to the enterprise, the severity of the abuse, and whether terminating the relationship with the entity itself would have adverse human rights consequences. Human Rights Council, note 10, 18–19.

87 European Commission, ‘Oil and Gas Guide on Implementing the UN Guiding Principles on Business and Human Rights’, developed by Shift and Institute for Human Rights and Business (June 2013), European Commission ‘ICT Sector Guidance on Implementing the UN Guiding Principles on Business and Human Rights’, developed by Shift and Institute for Human Rights and Business (June 2013); and European Commission, ‘Employment and Recruitment Agencies: Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights’, developed by Shift and Institute for Human Rights and Business (June 2013).

88 See www.voluntaryprinciples.org (accessed 3 February 2016).

89 See, e.g., Roland Dittli and Sidonia Gabriel, Fact Sheet Conflict Sensitivity, Swiss Peace Foundation swisspeace, Bern, 2012; or the Conflict Sensitivity Consortium, note 18.

90 See Guiding Principle 20, Human Rights Council, note 10, 19.

91 Ibid.

92 A notable exception in this regard is the ‘Guide to HRIAM’ of the International Business Leaders Forum and IFC, which provides some basic guidance on the evaluation of measures taken to address human rights risks. International Business Leaders Forum and IFC, note 78, 56–9.

93 For an exception see, e.g., Conflict Sensitivity Consortium, note 18, 69.

94 Goldwyn and Chigas, note 58.

95 See Commentary to Guiding Principle 21, Human Rights Council, note 10, 20.

96 Shift and Mazars, ‘UN Guiding Principles Reporting Framework’ (March 2015).

98 See Guiding Principle 22, Human Rights Council, note 10, 20–1.

99 See Guiding Principle 31, ibid, 26–7.

100 See, e.g., http://accessfacility.org/ (accessed 3 February 2016).

101 In practice, however, acting in a conflict sensitive way will in many situations require businesses righting their adverse impacts because the failure to do so is likely to stir more conflict.

* University of Basel, [].

** University of Pennsylvania, [].

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