Submission to the Working Group on Business and Human Rights Project on Business in Conflict and Post-conflict Contexts: Corporate Due Diligence in Situations of Armed Conflict

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Anne Herzberg,1 Legal Advisor of NGO Monitor and UN Liaison for the Institute of NGO Research, brings this submission to the Working Group on Business and Human Rights to assist it in formulating recommendations regarding the implementation of the UN Guiding Principles in conflict and post-conflict situations to be presented to the UN General Assembly in October 2020.

Introduction

The UN Guiding Principles (UNGPs) state that when operating in areas of armed conflict, business should  conduct enhanced due diligence resulting from potentially heightened risk and negative human rights impacts. Many non-governmental organizations and business and human rights (BHR) activists argue, however, that when there is a human rights impact identified, and this impact cannot be completely remedied, “enhanced due diligence” requires that businesses cease their operations or investments.  Some also posit that conducting business should be completely barred in specific conflict areas where human rights impacts occur irrespective of whether those impacts are tied to the business activity.  Still others seek to improperly establish ethnic, national, or religious criteria as a basis for conducting business. Yet, these conclusions are not mandated, nor recommended, by the UNGPs nor any of the other existing business and human rights guidelines. Moreover, adopting these activist demands would themselves lead to extremely harmful human rights impacts including the exacerbation and prolonging of conflict.

Importantly, when addressing business activities in conflict situations, the activist approach is often far too simplistic. This approach fails to take into account, beyond cursory citations, the requirements of international humantiarian law (IHL), the lex specialis of armed conflict situations. It confuses the legal obligations of governments versus private business, and presents aspirational objectives as binding norms. It also ignores competing human rights considerations and fails to appreciate the challenges faced by businesses needing to balance competing stakeholder interests, while also complying with multiple and overlapping regulatory environments.

This submission seeks to provide these missing dimensions. It surveys international and industry guidance, corporate practice, National Contact Point decisions and court cases in order to identify existing standards to help develop the emerging body of due diligence practices in armed conflict situations.2 Identifying these practices can help concretize the “Respect” pillar of the UNGPs.

It is essential that the recommendations issued by the Working Group do not limit their analysis to for-profit companies but encompass state-owned enterprises, humanitarian organizations, and other non-governmental organizations. These entities regularly engage in business or quasi-business activities in situations of armed conflict, are regulated by corporate governance, and often have budgets and numbers of employees (salaried or otherwise) that far exceed that of many companies. Their operations can also have tremendous impacts on human rights for both good and bad.

It is also imperative, that in developing its recommendations, as a Special Procedure under the auspices of the Human Rights Council, the Working Group carry out its mandate in compliance with Resolution 5/1 that requires its work be “guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation.” (para. 54)  Recommendations that single out one country or conflict zone would not meet these standards.

It is hoped that the research contained in the submission will aid the Working Group and others currently formulating norms and other regulatory frameworks.

Scope of Due Diligence Review

Due diligence in the context of business and human rights is the process by which companies take proactive steps to identify risks of human rights harm and if necessary, avoid and/or mitigate such risks.3 Prior to engaging in business operations, most companies undertake a due diligence review to identify potential risks and to expose any anticipated liabilities. Most guidelines advise such reviews to be on-going or renewed as changes occur in the operating environment. Business and human rights frameworks encourage (and mandate in some cases) corporations to take human rights concerns into account during the due diligence process. In situations of armed conflict, companies are advised to consult IHL. If concerns are identified, companies are advised, to the entext possible, to prevent foreseeable human rights impacts for which they are responsible. If this is not possible, guidelines recommend that businesses should do what they can to mitigate such impacts, including by exercising leverage over those who are positioned to implement change.

IHL Implications

 According to the UNGPs, a core principle of the corporate responsibility to respect human rights is that “in situations of armed conflict enterprises should respect the standards of international humanitarian law”.4 Similarly, the OECD Guidelines for Multinational Enterprises echoes the wording in the UNGPs noting that such standards “can help enterprises avoid the risks of causing or contributing to adverse impacts when operating in such difficult environments.”5 Nevertheless, to date, there has been little specific guidance as to how due diligence processes can incorporate IHL.

IHL consists of multiple treaties and customary legal obligations. The core instruments include the 1907 Hague Convention Concerning the Laws and Customs of War on Land, the Four 1949 Geneva Conventions, and the two Additional Protocols.6 The Convention Prohibiting Certain Conventional Weapons, the San Remo Manual on Armed Conflicts at Sea, the Hague Convention on the Protection of Cultural Property, and the Arms Trade Treaty, among many others, also form part of the IHL corpus.

IHL crafts a careful balance between the principles of military necessity and humanity.7 IHL does not prohibit war, nor the use of lethal military force. While it is difficult to accept, civilian casualties are permitted under IHL, provided combatants adhere to the rules of distinction and proportionality. Under these requirements, combatants must direct attacks at military objectives and must also ensure that civilian harm is not excessive to the anticipated military advantage. Occupation, prolonged detention, the use of military courts, and other situations seemingly at odds with human rights, are permitted (within specified constraints) under IHL.

Which specific rules of IHL apply in a given case depends upon whether the conflict at issue is an international armed conflict (IAC), a non-international armed conflict (NIAC), or a situation of belligerent occupation (a subset of rules contained within the laws of international armed conflict).  Often, it is difficult to determine how to classify a conflict. Indeed, there may be aspects of IAC and NIAC occurring within the same conflict.8 In addition, combatant parties may not want to identify a given situation as one of armed conflict precisely in order to block the application of IHL.9 The location of the conflict is also important in determining the applicable rules. While almost all states have adopted the Hague and the four Geneva Conventions, not all have signed onto the Additional Protocols or other IHL treaties. States may also differ as to what provisions have been accorded customary legal status. Therefore, IHL obligations can not only differ across jurisdictions, but even within jurisdictions.10

Footnotes

  1. Anne Herzberg (J.D. 1998, Columbia University School of Law; B.A. 1993, Oberlin College). She is the author of multiple books, articles, and research studies on international humanitarian and human rights law, international criminal law, and business and human rights, and has presented on these issues at several international conferences. Publications include: “Kiobel and Corporate Complicity: Running with the Pack,” American Journal of International Law Special Kiobel Agora, (January 2014);When International Law Blocks the Flow:  The Strange Case of the Kidron Valley Sewage Plant,” 10 Regent J. of Int’l L. 71 (2014); NGO ‘Lawfare’: Exploitation of Courts in the Arab-Israeli ConflictNGO Monitor Monograph Series, (September 2008, 2d edition December 2010). “Rule 61:  The Voice of the Victims Screams Out for Justice,” 36 Columbia Journal of Transnational Law 723 (1998).“Boycotts, Divestment, Sanctions and the Law,” with Jonathan Turner, 54 Justice 15 (2014); “The Role of International Legal and Justice Discourse in Promoting the New Antisemitism,” with Gerald Steinberg, in Anti-Zionism and Antisemitism (Alvin H. Rosenfeld, ed., Indiana University Press 2019); “NGO Factfinding for IHL Enforcement: In Search of a New Model,” with Gerald Steinberg, 51 Israel Law Review 261 (2018).“A Farewell to Arms: NGO Campaigns for Embargoes on Military Exports: the Case of the UK and Israel,” with Gerald Steinberg & Asher Fredman, 19 Israel Affairs 468 (2013); Best Practices for Human Rights and Humanitarian NGO Fact Finding, with Gerald Steinberg and Jordan Berman (Nijhoff 2012).

    The Insitute for NGO Research is a Jerusalem-based research organization. NGO Monitor is a project of the institute. Members of the Institute’s Advisory Board include Elliott Abrams, Senior Fellow for Middle Eastern Studies at the Council on Foreign Relations; former Canadian Ambassador to Israel, Amb. Vivian Bercovici; Hon. Michael Danby, former MP Australian Labor Party; Harvard Professor Prof. Alan Dershowitz; Canadian Senator, Hon. Linda Frum; Colonel Richard Kemp, former commander of British forces in Iraq and Afghanistan; Douglas Murray, Director of the Centre for Social Cohesion; former Member of Italian Parliament, Hon. Fiamma Nirenstein, UCLA Professor and President of the Daniel Pearl Foundation, Prof. Judea Pearl; US Jurist and former Legal Advisor to the State Department Judge Abraham Sofaer; Dr. Einat Wilf, former member of Knesset and advisor to Shimon Peres; Harvard Professor Prof. Ruth Wisse; R. James Woolsey, former US Director of Central Intelligence; and Israeli Supreme Court Justice, Justice Elyakim Rubinstein.  

  2. This submission is based on research from: Anne Herzberg, “Finding IHL: Corporate Due Diligence in Situations of Armed Conflict (publication forthcoming 2020, presented at the Interdisciplinary Research Workshop on Business and Human Rights at the University of Geneva, organized by Copenhagen Business School, the European Society of International Law, and the International Association for Business and Society, November 2019).
  3. See ISO26000 at p. 24.
  4. https://www.ohchr.org/documents/publications/GuidingprinciplesBusinesshr_eN.pdf at 13.
  5. https://www.oecd.org/daf/inv/mne/48004323.pdf
  6. https://www.icrc.org/en/doc/resources/documents/misc/business-ihl-150806.htm
  7. Michael Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, 50 Virginia J. Int’l L 795 (2010).
  8. The conflicts in Syria and the DRC are two notable examples where this has taken place.
  9. See e.g., ICRC Report on “General problems in implementing the Fourth Geneva Convention,” Meeting of Experts, Geneva, 27 – 29 October 1998.
  10. For example, the Convention Cluster Munitions has been ratified by more than 100 countries, but not by major military powers including the US, Russia, India, China, Brazil, or Turkey. Therefore, a US company operating in Afghanistan (a party) might be bound by the convention, while it might not be bound in its operations in Egypt (not a party). http://i1.wp.com/www.clusterconvention.org/wp-content/uploads/2016/09/States-parties-to-CCM-map_Oct2019.jpg

About the Author

Anne Herzberg

Anne Herzberg

Anne Herzberg is the Legal Advisor of NGO Monitor. She is a graduate of Oberlin College and Columbia University Law School. Prior to joining NGO Monitor, she worked as an attorney in New York. Her areas of research include business and human rights, international human rights law, the laws of armed conflict, universal jurisdiction, international fact finding, NGOs, and the UN.