Business and human rights in conflict
June 22, 2022
My career as an international human rights lawyer started in the aftermath of the disintegration of Yugoslavia and the conflicts that followed in the nineties. In fact, many of my colleagues from UNDP’s Rule of Law, Security and Human Rights team started their professional journey in the Balkans. Between 1992 and 1995 up to 100,000 people, many of whom were civilians, were killed and more than two million were displaced in Bosnia-Herzegovina alone. In 1997, fresh out of law school, I joined hundreds of other human rights officers of the Organization for Security and Co-operation in Europe (OSCE) in one of the largest human rights field operations ever deployed by an international multilateral organization. Our task was to help implement the Human Rights chapter of the Dayton Peace Agreement that had brought an end to the Bosnian war.
Most of us were sent to remote municipalities where from freezing offices we would receive claims from victims and intervene with government officials to negotiate a remedy for the violations. The reason for our presence was clear. During and after conflict, with weak or absent state structures and a breakdown of the rule of law, abuses invariably skyrocket, impunity thrives, and vulnerable people become even more vulnerable. We were asked to mitigate this imbalance, heighten the attention on human rights abuses and work with governments to hold them accountable for their own duty to do the same.
During my proud seven years of building peace and human rights compliance in Bosnia, I met with hundreds of officials at all levels. I worked at field, regional and headquarters level, and moved from OSCE to the United Nations. I don’t remember a single time in which at any of these levels, in any of our strategic or operational discussions, the word poslovanje (business) came up.
This will hardly surprise human rights activists of my generation. During the nineties, and for at least one more decade, human rights, and for that matter, peace, were still considered, by most, an issue exclusively between states, what our law books like to call duty-bearers, and citizens or rights-holders. All this changed in 2011 with the unanimous adoption by the Human Rights Council of the UN Guiding Principles on Business and Human Rights which for the first time clearly defined the responsibility of companies to know and show their impact on human rights and provide remedies when their operations cause, contribute or are linked to abuses. From then on, a growing number of companies have embraced the concept of Human Rights Due Diligence (HRDD). Introduced by the UN Guiding Principles, the HRDD is the process by which companies are encouraged to identify, prevent, mitigate and account for how they address actual and potential adverse human rights impacts in their own operations, supply chains, and in other relationships.
The UN Guiding Principles on Business and Human Rights explicitly point out that some of the worst human rights abuses involving business occur amid conflicts over the control of territory and its resources, or after the hostilities cease. They also build the concept of HRDD around the principle of proportionality. The higher the risk, the more complex the checks and balances required. In October 2020, the UN Working Group on Business and Human Rights (UNWG), the body appointed to coordinate implementation of the UN Guiding Principles, included in a seminal report to the UN General Assembly a recommendation to companies to conduct heightened Human Rights Due Diligence (hHRDD) when operating in conflict.
When risks are heightened, during and after the hostilities, or even before them, when certain red flags are raised, companies are asked to complement their standard Human Rights Due Diligence processes with a conflict-sensitive approach. In its report, the UN Working Group encouraged companies to follow a three step approach; 1) identify the root causes of tensions and potential triggers and the real and perceived grievances that can drive conflict; 2) map the main actors in the conflict and their motives, capacities and opportunities to inflict violence or be peace engines; 3) identify and anticipate the ways in which the businesses’ own operations, products or services impact existing social tensions or create new tensions or conflicts.
In the last three years, the growth of the responsible business discourse, in parallel with the eruption of crises in Myanmar and Ukraine among others, has led to rapidly increasing scrutiny from consumers, media and investors on the impact of business operations on conflicts. In greater numbers, multinational enterprises have started to acknowledge that their operations are not neutral in crisis contexts.
To respond to growing demand from those companies to receive more advice on how to approach this conduct in practice, UNDP’s Global Programme for Strengthening the Rule of Law, Human Rights, Justice and Security for Sustainable Peace and Development and the UN Working Group on Business and Human Rights joined hands to produce a toolkit on Heightened Human Rights Due Diligence for Business in Conflict-affected Contexts.
Using the UN Guiding Principles as a starting point and referring to other relevant documents including the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, this new guide distills theory and practice of human rights due diligence and conflict sensitivity in business-friendly language. It provides parameters to design, update and implement heightened corporate human rights due diligence in places affected by armed conflicts and other situations of widespread violence. In doing so, it provides businesses with the tools to make a positive contribution to preventing and transforming conflicts, rather than being seen as potentially fueling them.
Twenty-seven years after the Dayton Peace Agreement, Bosnia-Herzegovina could still be considered a conflict-affected area. In 2020 UNDP started working on business and human rights. Now, for Bosnia and Herzegovina and many crisis contexts, the toolkit on Heightened Human Rights Diligence opens the possibility to leverage the role in both human rights and peacebuilding of a new and very powerful actor: poslovanje (business).