New UN guidance entitled Heightened Human Rights Due Diligence for Business in Conflict-Affected Contexts: A Guide (available here) was recently published. It is based on the United Nations Guiding Principles on Business and Human Rights (UNGPs). UNGP no. 23 encourages businesses to treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue, and notes that operations or business relationships in conflict-affected areas are likely to increase the risk of businesses being found complicit in gross human rights abuses committed by other actors (such as the security forces).
The UNGPs recommend that in relation to conflict-affected areas businesses carry out ‘enhanced’ or ‘heightened’ human rights due diligence in order to identify and address their adverse impacts on human rights. Expanding upon the UNGPs and the concept of heightened human rights due diligence, this new Guide states that:
- businesses need to identify and assess not only actual or potential adverse human rights impacts, but also actual or potential adverse impacts on conflict that the business may cause or contribute to through its own activities, or that may be directly linked to its operations, products or services;
- the imposition of sanctions may be a useful indicator, but not a substitute, for heightened due diligence; and
- because contexts are particularly dynamic in armed conflicts and other situations of widespread violence, businesses should carry out heightened due diligence on an ongoing basis and ensure it updates its assessment periodically.
The Guide sets out some of the early ‘red flags’ pointing towards armed conflict or mass violence which should trigger heightened due diligence. Guidance is provided to help businesses identify actual or potential adverse impacts connected either to the company’s activities, products or services. If there is a war that is unlawful under international law, businesses should “assess, and avoid or mitigate connections to the war efforts of the aggressor in order to ensure that they do not exacerbate the situation”.
Businesses should furthermore address the most serious impacts on conflicts and human rights first by considering scale (How widespread is the armed violence that impacts people, eg number of people affected?), scope (How grave or serious is the armed violence, ie. does it include a large number of deaths and casualties?) and irremediability (What are the limits to restoring the people impacted to at least the same, or equivalent to, their situation before the armed violence occurred?). A detailed list of parameters and considerations to determine the adequate measures to mitigate human rights risks is set out in the Guide.
The Guide also advises businesses to adopt a proper exit strategy and warns that a hasty exit can be as damaging as one that is too late. A business contemplating exiting or suspending its operations should “consider whether exiting or suspending could exacerbate tensions, and whether the potential harm to people outweighs the benefits”.
Until recently, there has been little guidance on what human rights due diligence means for companies operating or with business relationships in conflict-affected areas, but a number of resources have been published in recent months. Businesses reviewing their approach may find the following helpful:
- The Security and Human Rights Toolkit International Committee of the Red Cross (ICRC), Geneva Centre for Security Sector Governance (DCAF), and Geneva Centre for Business and Human Rights (GCBHR) (available here).
- The Business for Social Responsibility rapid human rights due diligence tool for human rights due diligence in urgent scenarios (available here).
No doubt that the Guide will usefully inform the formation of best practices in terms of heightened due diligence to be conducted in relation to conflict-affected areas.
For further information on businesses’ duties, responsibility and liability, in the context of potential adverse impact on human rights, feel free to contact a member of Hogan Lovells Business & Human Rights group.
Authored by Christelle Coslin, Liam Naidoo and Kevin O'Connor.