Life During Wartime: New Guidance on Heightened Human Rights Due Diligence in Conflict-Affected Contexts

By Kwame Taylor

Conflict around the world is rising. Civil wars have tripled over the years. Challenges such as resource scarcity, climate change and the lingering effects of the pandemic will only worsen the impact of conflicts. Businesses face an increased risk of involvement in human rights abuses, and complicity in conflict-affected contexts. These heightened risks require commensurate efforts towards due diligence. The Russian war in Ukraine serves as a good example of why this is crucial. Research showed companies in Ukraine were broadly unprepared for operating in a conflict situation, despite warning signs going back to before the armed annexation of Crimea in 2014. In these contexts, failures to prevent and mitigate risks appropriately can lead to harm to communities, employees, suppliers, customers, and can increase liability, interruptions, and reputational damage.

Business activity in conflict-affected contexts is never neutral: even using best practices, there is always an impact. The UN Guiding Principles on Business and Human Rights (UNGPs) recognise that business activities in such areas increase the risks of companies fuelling conflict or further abuse of rights. Therefore, the need to conduct human rights due diligence becomes even more crucial.

The UN Development Programme (UNDP) and UN Working Group on Business and Human Rights have published guidance providing parameters to design, update and implement heightened corporate human rights due diligence in conflict-affected contexts. Based on the UNGPs, businesses are encouraged to treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue.

What is heightened human rights due diligence?

According to the UN Working Group, the Guiding Principles do not specifically mention a different type of due diligence for conflict-affected regions. They are built around a concept of proportionality: the higher the risk, the more complex the processes. Hence, “because the risk of gross human rights abuses is heightened in conflict-affected areas,” due diligence applied must also be. Human rights due diligence typically assists businesses by making them aware of how to avoid or minimise risks to people. Whereas, heightened human rights due diligence ensures businesses identify potential and actual impacts on people and the conflict. It stresses the importance of understanding how business activity is linked to the conflict. There a four pillars of heightened human rights due diligence:

  • Maintain an understanding of the context in which you operate
  • Understand how your activities interact with this context (this can be through relationships with business partners linked to the conflict)
  • Understand how they impact on human rights
  • Use this understanding to avoid and mitigate negative impacts

When to conduct heightened human rights due diligence?

The guidance recommends heightened due diligence in the following scenarios:

  • Widespread non-conventional armed violence
  • International armed conflict between two states
  • Internal armed conflict
  • Military occupation
  • Gross human rights violations
  • Any early warning signs of the above

Risks can always evolve over time. Heightened human rights due diligence in conflict situations should be conducted on an ongoing basis and not just as a tick box exercise. The guidance provides some “red flags” as early indicators for armed conflict which should prompt the initiation of heightened human rights due diligence. Some of these red flags include:

  • Amassing of weapons by non-state groups
  • Weak or absent state structures
  • Serious violations of international humanitarian/human rights laws
  • Increasingly targeted hate speech towards a specific group
  • Any indication of militia recruitment

How can companies prioritise actions to address adverse impacts they are having on the conflict and human rights?

Identifying actual and potential adverse human rights impacts is only the first step. To uphold the fundamental obligation to respect human rights, companies need to prioritise their actions, considering firstly their scale, which concerns the gravity of the armed violence, for example whether it involves a large number of deaths and casualties. Secondly, scope, which refers to how widespread the violence that impacts people is, for example the number of people affected. Lastly, irremediability, which is concerned with the possibility of restoring the affected people to at least the same, or equivalent situation before the armed violence occurred.

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