In a report submitted to the UN Human Rights Council in 2010 on the issue of human rights and transnational corporations and other business enterprises, John Ruggie (Former Special Representative of the UN Secretary General) stated that: “[t]he worst corporate-related human rights abuses occur amid armed conflict over the control of territory, resources or a government itself – where the human rights regime cannot be expected to function as intended and illicit enterprises flourish”. (A/HRC/14/17)
The UN Guiding Principles on Business and Human Rights (UNGPs) recognise that business activities in conflict-affected and high-risk areas increase the risks of enterprises fuelling conflict. International humanitarian law applicable to business in conflict-affected areas include, for instance, the Geneva Conventions and their Additional Protocols, and The Arms Trade Treaty.
Business may contribute to, or facilitate, human rights abuses committed by other actors, such as security forces or armed non-state actors. For instance, tin, tantalum, tungsten, and gold are metals found in most household electronic appliances. However, they are often mined in conflict areas, such as Eastern Democratic Republic of Congo, and have consequently earned the term ‘conflict minerals’. The purchase of conflict minerals contributes to human rights violations including summary executions, forced labour, rape, and finances armed rebel groups who contribute to ongoing violence in the region. (Human Rights Watch Report, The Curse of Gold). In 2013, internally displaced farmers in Colombia faced killings, intimidation, threats, and further forced displacement from paramilitaries, when trying to reclaim their land, where oftentimes paramilitaries acted on behalf of businesses seeking to evict rightful landowners. (Human Rights Watch Report, The Risk of Returning Home). Companies have also been accused of being complicit with military dictatorships by enabling the torture and disappearance of trade union members and workers, including in Brazil and Chile. More recently, a number of multinational corporations have been sued for allegedly aiding and abetting “terrorist operations against Americans in Iraq”. In other cases, shipping companies have also contributed to human rights abuses in conflict-affected regions by transporting weapons, including in breach United Nations sanctions. For instance, in 2016, Egyptian authorities discovered more than 30,000 rocket-propelled grenades in a ship that set sail from North Korea, with a North Korean crew, but flew a Cambodian flag under the “flag of convenience” doctrine, a tactic intended to avoid international attention. The cargo was destined for Egyptian buyers. According to the United Nations, this was “the largest seizure of ammunition in the history of sanctions against the Democratic People’s Republic of Korea”.+ Read more
UN Guiding Principle 7, highlights the importance of supporting business respect for human rights in conflict-affected areas. It specifies that:
“States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by:
(a) Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships;
(b) Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence;
(c) Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation;
(d) Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.”
Furthermore, Commentary to UNGP 7 outlines that States can play an important role in guiding responsible businesses to “avoid contributing to human rights harm in these difficult contexts”. It emphasises “the risk of sexual and gender-based violence, which is especially prevalent during times of conflict”. It addresses the problem of ineffective ‘host’ State human rights protection in the context of operations by transnational corporations by calling on ‘home’ States to assist “both those corporations and host States to ensure that businesses are not involved with human rights abuse”. Finally, ‘home’ States may “achieve greater policy coherence” and provide more effective assistance to businesses by fostering “closer cooperation among their development assistance agencies, foreign and trade ministries, and export finance institutions in their capitals and within their embassies, as well as between these agencies and host Government actors”.
Additionally, Commentary to Guiding Principle 23 notes that “[s]ome operating environments, such as conflict-affected areas, may increase the risks of enterprises being complicit in gross human rights abuses committed by other actors (security forces, for example)”.
Documents, such as the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas and its Supplement on Gold and the UN Global Compact Guidance on Responsible Business in Conflict-Affected and High Risk Areas, also address the increased risks for business enterprises operating in conflict areas, and provide guidance to help companies prevent or mitigate the risk of contributing to human rights abuses.
Some governments have undertaken efforts to provide and promote adequate guidance to business operating in conflict-affected areas, while many others remain reluctant and ill-equipped to do it in a meaningful manner. Examples of efforts include: support for the Voluntary Principles on Security and Human Rights, requiring companies to comply with the International Code of Conduct for Private Security Providers’ Association (ICoCA), and promotion of supply chain due diligence guidelines.
The European Union has adopted the Conflict Minerals Regulation to establish “a Union system for supply chain due diligence in order to curtail opportunities for armed groups and security forces to trade in tin, tantalum, and tungsten, their ores, and gold.” The Regulation will come into full force across EU countries on 1 January 2021.
As of April 2017, the Securities and Exchange Commission (SEC) has suspended the requirement under section 1502 of the Dodd-Frank Act (the conflict minerals rule) that companies using gold, tin, tungsten, and tantalum report on whether those materials came from the Democratic Republic of Congo, or an adjoining country, pending further internal investigation. If found, the section obliged companies to perform a due-diligence review of their supply chain to determine whether their purchases are funding armed groups in the region. Companies were also required to report publicly on their due diligence findings and submit their reports to an independent audit. (Public statement on the Conflict Minerals Rule). The suspension followed from a court ruling which found that the Conflict Minerals rule “violate[s] the First Amendment to the extent the statute and rule require regulated entities to report to the Commission and to state on their website that any of their products have ‘not been found to be “DRC conflict free.”(National Association of Manufacturers v. Securities Exchange Commission).
The issue of conflict-affected areas relates to the following Sustainable Development Goal
16) Peace, Justice and Strong Institutions
- Business and Human Rights Resource Centre: Business, Conflict & Peace Portal, Issues: Security Issues and Conflict Zones:
- The Voluntary Principles on Security and Human Rights; http://www.voluntaryprinciples.org/
- Voluntary Principles on Security and Human Rights: Implementation Guidance Tools; Intl. Council on Mining & Metals, Intl. Committee of the Red Cross, Intl. Petroleum Industry Environmental Conservation Association, Intl. Finance Corporation, 2011
- The International Code of Conduct for Private Security Providers’ Association (ICoCA)
- Red Flags Initiative
- The Montreux Document on pertinent international legal obligations and good practices for states related to operations of private military and security companies during armed conflict (The Montreux Document on Private Military And Security Companies), 2008, http://www.mdforum.ch/montreux-document
- OECD (2016), OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas: Third Edition, OECD Publishing, Paris. http://dx.doi.org/10.1787/9789264252479-en
- OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas – Supplement on Gold
- “Guidance on Responsible business in conflict-affected and high-risk areas: A resource for companies and investors”; United Nations Global Compact, Principles for Responsible Investment, Jun 2010
- “Operating responsibly in the Middle East and North Africa: Implementing the UN Guidance”, Taylor McKellor, Oct 2010
- “Security forces” (on Human Rights & Business Dilemmas Forum), UN Global Compact, Maplecroft
- “Global Compact Business Guide for Conflict Impact Assessment and Risk Management”; UN Global Compact, 2002
- “Business and International Humanitarian Law”; International Committee of the Red Cross, 2006
- “Red Flags – Liability risks for companies operating in high-risk zones”
- “Business and human rights: The role of business in weak governance zones – Business proposals for effective ways of addressing dilemma situations in weak governance zones”, International Organisation of Employers (IOE), in collaboration with International Chamber of Commerce (ICC), Business and Industry Advisory Committee (BIAC) to the OECD, 2006
- “Doing business while advancing peace and development“, United Nations Global Compact, Jun 2010
- “Security of people and assets – Discussion paper”
Prepared for UN Special Representative on business & human rights, 2006
- “Montreux Document – On pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict”
- Olga Martin-Ortega , ‘Business and Human Rights in Conflict’ (2008) 22 Ethics & International Affairs 3
- GRAF, A., & IFF, A. (2017). Respecting Human Rights in Conflict Regions: How to Avoid the ‘Conflict Spiral’. Business and Human Rights Journal, 2(1), 109-133. doi:10.1017/bhj.2016.9
- Angela Rivas Gamboa and Mateo Echeverry Ángel (August 2010), Collaborative Learning Projects – Corporate Engagement Project. Colombia: Community Perspectives on the Business Responsibility to Respect Human Rights in Countries Affected or Threatened by Conflict.
What National Action Plans say on Conflict-affected areas
Action point 22
Encourage responsible supply chain management with a sector-wide approach
The NAP describes several tools of the OECD, including “OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas,” which the federal government seeks to engage with through the Belgian NPC.
Pillar 1: The State Duty to Protect Human Rights
Strand 1: Training in the Field of Business and Human Rights
Action Point 1.2 (page 30)
The Under-Secretariat of Human Rights of the Ministry of Justice and Human Rights will: …
- Promote the introduction of contents about business enterprises and human rights in training sessions held by the Armed Forces and the Order and Security Forces, when relevant, according to the trainees’ profiles…
Given Colombia’s context, security and peacebuilding in conflict-affected areas is one of the central themes of the NAP. It is important to note that apart from the specific measures cited here, many -maybe most- of the NAP’s initiatives are conceived under a perspective of peacebuilding.
- Colombia’s High Counselor for Post-Conflict, Human Rights and Security appears as one of the NAP’s authors (page 2).
- The NAP is aligned with Colombia’s National Development Plan for 2014-2018 “Todos por un País Nuevo”, whose goal is to “make from Colombia a peaceful and equitable country, educated in accordance with the Central Government’s purposes, the best international practices and standards and the SDG’s long-term planning vision”.
- In the introduction (page 6), the NAP claims to be coherent with international rules and standards. In particular, it mentions the OECD’s Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and the Voluntary Principles on Security and Human Rights.
- According to the NAP, it is particularly important for Colombia’s Government that companies operating in areas historically affected by the armed conflict manage their risks and possible impacts on Human Rights in an especially careful way (page 7).
- Mining, agribusiness and road infrastructure sectors are prioritized due to their higher level of social conflict (page 7).
- According to the introduction (page 7), Colombia’s NAP is conceived as an input for post-conflict and peacebuilding: “The post-conflict scene may entail an increase in social conflicts related to business activities. A joint effort by the State, business, unions, civil society organizations and the International Community is required to improve the human rights management in business enterprises, and to seek remedies should there be any violations thereof. However, actions stipulated herein will not depend upon the entering into one or more peace agreement, since the protection and guarantee of human rights must take place at all times, everywhere.”
- The NAP is coordinated with Colombia’s framework for business and peace (Marco de Empresas y Paz), designed by the Post-Conflict Directorate in collaboration with Colombia’s Office of the High Commissioner for Peace (page 7):
“The Plan is organized under the Business and Peace Framework, which is being designed by the Post-Conflict Directorate jointly with the Office of the High Commissioner for Peace. The Framework stipulates, without limitation, a more active role by enterprises within the positive transformations required by the country, going for due diligence and with an approach to keeping the “Action without Damage” Plan. This approach applies ethical criteria and human coexistence values in plural and multi-cultural conditions, based on the dignity, autonomy and freedom concepts.
In this sense, the current strategies and plans encouraging reconciliation in Colombia, which require wholehearted support in the exercises of historical memory, as well as larger participation of enterprises in the job placement of the victims of the conflict and individuals in insertion processes.”
- The introduction also sets a shared leadership for the NAP’s implementation (pages 7-8): “Likewise, strategic alliances will be established with the chambers of commerce, trades, social and union organizations and other relevant actors for the execution of this Plan and its adjustment to the territorial context, jointly with the enterprise and peace process locally, considering the current progress towards the termination of the armed conflict.”
- Page 17:
“Upon this Plan, the National Government will focus its efforts on consolidating the progress of the business commitment to the respect for human rights in the following lines: Generate a culture of human rights and peacebuilding in the business sector.”
- Action point VI: Culture of Human Rights and peacebuilding in the business sector (page 18):
“Colombia faces the significant challenges of developing its culture of peace within a peacebuilding context. Therefore, all social actors are essential for the performance of the positive transformations Colombia requires.”
- The fourth objective of the NAP is: “Support and encourage a peaceful solution to conflicts generated in the context of business activities” (page 8).
- Objective 5 (page 8): “Contribute to the achievement of lasting peace in Colombia and to the implementation of public policies aiming at guaranteeing peace both in the urban and in the territorial areas.”
- Assessment and follow-up (page 25):
“The Plan seeks to achieve positive changes in the initial situation and the context upon which it is built, with results oriented to better enjoyment of rights, welfare, development, peace and equality in the country.”
- Action point 1.1 (page 10):
“The Working Group on Business and Human Rights will be responsible for monitoring advance and progress of the Plan implementation. For such purpose, its regulation will be issued, the frequency of its meetings will be defined, and an operational plan will be implemented, which will determine its activities annually defining the subject approach and the regulation compliance within the priority areas for this plan. This group will include the Post-Conflict Directorate.”
- Action point 1.9 (page 12):
“The Post-Conflict Directorate, jointly with the Council to the President for Human Rights, will promote the agenda on human rights and peacebuilding in the business sector, in alliance with the Chamber of Commerce of Colombia; thus, a training and knowledge transfer process by the Government, as well as cooperation with enterprises and the enterprises’ employees will be created.”
- Action point 3.2 (p. 14):
“The Post-Conflict Directorate and the Office of the High Commissioner for Peace will design a protocol for dialogue among the communities, enterprises and state entities, allowing for the participation of social organization, according to the international standards on business and human rights.”
- Action point 3.3 (p. 14):
“The Ministry of Internal Affairs will propose the inclusion of the business and human rights issue on the agenda of the National Committee for Human Rights Defenders, Social and Community Leaders, as well as the Regional Committees for Guarantees, with the purpose of using them as meeting spaces to settle conflicts with impacts on human rights caused by the business activity.”
- Action point 3.4 (p. 14):
“Through the Comprehensive Conflict Prevention and Management System, the National Government will create agreement and social talk mechanisms between the Government and its several levels, the communities and the enterprises. The foregoing to create formal dialogue areas for actors with various interests; all of that as the way to contribute to peacebuilding and respect for human rights in the territories. This action will begin its execution once the system is implemented.”
- Action point 3.5 (p. 14):
“The Ministry of the Interior will organize actions intended to guarantee the necessary safety conditions so the leaders working on business and human rights matters might carry out their activities in proper conditions, according to the current guarantee policy for the defense of human rights.”
- Action point 5.3 (p. 16):
“Promote the implementation of the United Nations Guiding Principles and other international standards on business and human rights by the trades and the enterprises part thereof, so they may adopt human rights policies. Thus, during the first year of the execution of this Plan, the Council to the President for Human Rights will convene high level meetings with the trades to determine the inclusion goals in the multi-actor initiatives and human rights performance follow-up mechanisms. These actions must be coordinated with the entities of the Working Group, especially with the Ministry of Commerce, Industry and Tourism and in cooperation with the Post-Conflict Directorate.”
- Action point 5.4 (page 16):
“The Council to the President for Human Rights and the Ministry of National Defense will encourage the implementation of the Voluntary Principles on Security and Human Rights. To that end, they will alternately engage in the areas where such issue is treated.”
- Action point 5.5 (pages 16-17):
“Develop a guide on the increasing human rights risks of the business activities in zones historically affected by the armed conflict. Thus, the Council to the President for Human Rights and the Post-Conflict Directorate will coordinate with the Comprehensive Conflict Prevention and Management System the development of such guide, which must be worked upon in a participatory manner with the enterprises and the civil society. According to the provided period to create the Comprehensive Conflict Prevention and Management System, this action must be carried out within the year following the coming into operation of such system.”
- Action point 6.3 (page 18):
“The Unit for Care and Integral Repair for Victims, as the coordinator of the National Care and Integral Repair for Victims (SNARIV), jointly with the Post-Conflict Directorate, will develop strategies aiming at getting companies to contribute to the recovery of historical memory for peacebuilding, reconciliation and promotion of human rights and the reconstruction of the fabric of society, wherefore memory and peacebuilding culture initiatives might be created.”
- Action point 6.4 (page 18):
“The Council to the President for Human Rights, the Colombian Agency for Reintegration and the Post-Conflict Directorate will prepare a joint strategy for companies to actively promote major participation of people in the reintegration process into the business field, in the production field, and in the peacebuilding processes.”
- Action point 6.5 (page 18):
“The Working Group will encourage enterprises to exchange their experiences in order to better understand the human rights and peacebuilding management.”
- Action point 6.6 (page 18):
“The Post-Conflict Directorate will hold a public debate on the role and power of business enterprises in peacebuilding.”
- Action point VIII: Respect for Human Rights as a competitive advantage (page 20):
“The institutional strengthening by companies is an alliance between the public and the private sectors, which is also to the benefit of the national peacebuilding agenda.”
- Action point 8.2 (page 20):
“The Ministry of Commerce, Industry and Tourism, supported by the Council to the President for Human Rights, the Post-Conflict Directorate and the National Authority for Environmental Permits, will incentivize the establishment of public-private alliances for the creation of social and environmental quality enterprises, particularly in the scattered rural areas.”
- Action point 8.7 (page 21):
“The Post-Conflict Directorate, in cooperation with the Council to the President for Human Rights will identify and recognize the joint work opportunities between the business and the public sectors for development and peacebuilding.”
- Action point 10.2 (page 23):
“The Working Group on Business and Human Rights, within the year of the Plan being launched, will draw a map of the current judicial and non-judicial remediation mechanisms on business and human rights in the country. Such map will identify which mechanism responds to each type of conflict, and will include a diagnostic of the efficacy and efficiency of the access to judicial and non-judicial remedy mechanisms, according to the United Nations Guiding Principles, identifying the obstacles to access to justice by the affected populations, both legally and practically.”
The Czech NAP has a chapter dedicated to Trade in military equipment, which does not explicitly address conflict-affected areas, but states
Trade in military equipment [page 18-20]
“…non-profit organisations such as Amnesty International continue to criticise the Czech Republic for exporting weapons to “high-risk countries”.
“Current state of play: …
- The Czech Republic participates in a number of international schemes to regulate the arms trade. In particular, it is party to the Arms Trade Treaty (ATT), which provides that if there is a clear risk that the conventional arms to be exported might be used in the commission of serious violations of international humanitarian law, export will be denied. …
- Hold regular meetings between the Ministry of Foreign Affairs, the Ministry of Industry and Trade and the non-governmental sector on issues of transparency and human rights in trade in military equipment.
Coordinators: Ministry of Industry and Trade, Ministry of Foreign Affairs
- Offer all necessary cooperation and assistance to the Parliamentary Subcommittee on Acquisitions of the Ministry of Defence, Trade in Military Equipment and Innovations of the Armed Forces of the Czech Republic so that regular assessments can be carried out of the human rights risks posed by export licences and by military equipment exports that have been made.
Coordinators: Ministry of Industry and Trade, Ministry of Foreign Affairs
Supply chains and conflict minerals [page 20-21]
“Increasing attention is being paid to safety conditions at work (e.g. the use of slave and child labour in mining). Risks of this type are particularly serious in areas plagued by armed conflict, which can be attributed to the absence of state authority here. …
Current state of play:
- At EU level, a regulation on “conflict minerals” has been adopted in order to standardise procedure in all EU Member States. …
- The Czech Republic was involved in the consultation and approval of OECD recommendations on the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector. The Ministry of Industry and Trade IS now considering how they can best be implemented in the Czech Republic. …
- Establish one or more competent bodies responsible for the application, in the Czech Republic, of Regulation (EU) 2017/821 of the European Parliament and of the Council laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas, and notify that body (those bodies) to the European Commission.
Coordinator: Ministry of Trade and Industry
Deadline: 9 December 2017”
Pillar II, Scope and content of the obligation to respect human rights [page 31]
“…some businesses may face conflict with other rights and principles specific to a particular country or industry. For the sake of example, a manufacturer of military equipment should not supply goods to a regime if there is a deep-seated suspicion that they will be used against civilians, and should not make instruments of torture.”
Appendix 1, GP 7
State Duty to Protect [page 30]
“Supporting business respect for human rights in conflict-affected areas.
Because the risk of gross human rights abuses is heightened in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by:
a) Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships;
b) Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence;
c) Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation;
d) Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.”
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 30]
“The Danish development assistance generally contributes to the promotion of human rights in conflict areas. In conflict areas it is often difficult to work closely with the host country, because local authorities do not always have sufficient capacity to monitor and legislate. The Danish efforts in fragile states include support for building institutional framework.” …
Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 30]
“The Danish Government has provided financial assistance to the OECD Proactive Agenda work which has a specific focus on conflict-affected areas. For more information see http://mneguidelines.oecd.org/proactiveagenda.htm.”
The Finnish NAP makes reference to conflict-affected areas in terms of conflict minerals and supply chains.
1 The state obligation to protect human rights
1.3 Activities in the EU [page 17]
“The international interest in raw materials is increasing. Whilst the materials may be used as a resource supporting development, there is also a risk of ambiguities related to the funds received from raw materials and/or the funds being used to support conflicts. The European Commission has made a proposal to establish a due diligence system for the union based on a spontaneous declaration by the responsible importers of certain minerals originating in conflict zones and high-risk areas.
The Commission proposal has taken into consideration both the OECD Guidance for mineral purchasing in conflict zones as well as the OECD and UN guidelines more generally related to responsible supply chain management. The proposal is currently being discussed on the national level. Finland actively participates in the discussion of the proposal in the Council working group. …
As a follow-up measure, the working group proposes that
- Finland actively participate in the discussion of the proposal for a regulation on conflict minerals and in the discussion for the development of practices for responsible supply chains in the raw material sectors.
Principal responsible party: Ministry for Foreign Affairs, continuous activities.”
I – The State’s Obligation to Protect Human Rights
The International Framework
3. The Organisation for Economic Co-Operation and Development (OECD) [page 14]
… Lastly, France finances actions supporting the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. It is also very active in the working group developing a guide for the textile industry, following the recommendations of its NCP in this field.
The European Framework
7. The European Union (EU) [page 18]
… Following the proposal for a European regulation on the traceability of minerals from conflict zones,6 France supported an ambitious draft regulation on responsible supply chains for minerals in conflict zones and high-risk areas. The regulation on due diligence for conflict minerals was approved at a plenary session of the European Parliament in March 2017, following the political understanding announced by the Council in June 2016. France will work to ensure that it is correctly implemented and quickly evaluated so it can be reinforced if necessary …
The National Framework
13. The Role of Public Agencies
Actions Underway [page 30]
- COFACE Government Guarantees and the Ministry of the Economy and Financeare currently examining whether to implement an IT module widening the scope of checks, to highlight at-risk industries or countries in the short, medium and long term. This would make it possible to check compliance with the UN Guiding Principles by reviewing all credit insurance operations and assessing human rights risks.
15. Economic Sectors and Human Rights [page 31]
Not only must the authorities promote and raise awareness of CSR standards, they must also require extra vigilance with respect to high-risk economic sectors, geographic areas and products.
The Extractive Sector [page 34]
- France helps monitor and finance the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. This document is an international reference in the field of good practices for businesses seeking to identify and manage non-financial risks in their mineral supply chains (funding for armed groups and terrorism, human rights abuses, child labour, corruption, etc.).
- France is also active at the EU level. For example, it took part in negotiations on the Conflict Minerals Regulation, which concluded on 22 November 2016. It played a key role in pushing through the adoption of Chapter 10 of the Accounting Directive of 26 June 2013, which requires companies in the extractive sector to report all payments to governments in the countries they operate in, broken down by country and by project. France was one of the first European countries to transpose this requirement.
- France raises awareness among French businesses of their due diligence obligations with respect to mineral supply chains as set out in relevant regulatory initiatives (the OECD Due Diligence Guidance, the EU Conflict Minerals Regulation and national law on due diligence).
II – Businesses’ Responsibility to Respect Human Rights
- The French Ministry of Foreign Affairs and International Development issues advice for businesses operating in conflict zones and/or high-risk areas.
There is no mention of conflict-affected areas in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
The German NAP contains a section on conflict-affected areas:
2.3 Business activity in conflict zones [page 32-33]
“The UN Guiding Principles attach particular priority to assisting enterprises in respecting human rights in areas torn by conflicts. One characteristic of such areas is an especially high risk of serious human rights violations resulting from the frequent total absence of state structures. The Federal Government therefore considers that it has a responsibility to try to ensure that German enterprises operating in such conditions have no part in any adverse impacts on human rights. Enterprises operating in these conditions are to be supported whenever they are able, through their investments and business activities, to contribute to the stabilisation and development of such areas. In fragile or war-torn countries, there is often a danger that trade in raw materials is cornered by destabilising players, who will use it for their own ends and thereby fuel existing conflicts. Importance therefore attaches not only to international commodity diplomacy but also to local contributions in cases where specific interests are affected by the exploitation of raw materials.”
The current situation
“An important contribution to these efforts is being made by the deliberations, which Germany is backing, on what are known as ‘conflict minerals’, an intense discussion being conducted within both the OECD and EU frameworks. In 2011, the OECD published a guide to corporate responsibility along supply chains in which minerals from conflict zones are traded and handled. The guide, entitled OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, has also been available in German since 2015. The primary aim of the Guidance is to curb the funding of armed conflicts from the proceeds of trade in raw materials; in addition, compliance with its recommendations would help to prevent serious human rights violations, especially child labour.
The European Commission has presented a proposal for a regulation setting up a Union system for supply chain due diligence self-certification of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas. Based on the aforementioned OECD guide, the Commission’s draft regulation would establish a voluntary undertaking to observe due diligence rules within supply chains when importing the minerals referred to above so as to ensure that proceeds from their sale are not used to fund armed struggles in conflict zones or other high-risk areas. The European Parliament, on the other hand, expressed itself in favour of a binding instrument for downstream operators, that is to say along the whole value chain. A basic compromise has now been reached between the European Parliament, the Council and the European Commission on a binding instrument focused on the upstream area, i.e. the supply chain. Further details will now have to be negotiated in the context of the trialogue conducted by the EU institutions.
In the quest for targeted improvements in the protection of human rights, the Federal Government is sponsoring a research project that is being conducted by the German Institute for Human Rights. Through the project, selected national human rights institutions in countries with which Germany engages in development cooperation are strengthened in their work in the raw materials sector. In the framework of technical cooperation, human rights analyses are being conducted in the Andean countries. Human Rights Risks in Mining – A Baseline Study, presented by the Federal Institute for Geosciences and Natural Resources at the beginning of 2016, contains an in-depth analysis of the impact of mining on human rights. In addition, the Federal Government is promoting conflict-sensitive management of natural resources, particularly in Africa (Mali and the Democratic Republic of the Congo), in a project in which representatives of government, the private sector, civil society and affected populations are brought together in a dialogue with a view to reconciling their diverse interests in a participative and conflict-sensitive framework.”
- “The Federal Government is pursuing the aim of preventing the use of proceeds from the sale of tin, tantalum and tungsten, of their respective ores and of gold to fund armed struggles in conflict zones and other high-risk areas. It is committed to the establishment of binding due diligence rules, which should be proportionate and should not entail unnecessary red tape, particularly for small and medium-sized enterprises.”
Section 2: Current Legislative and Regulatory Framework
Supply Chain [page 15]
“The Government supports the proposal by the European Commission for an EU Council Regulation which provides for the establishment of an EU-wide system for supply chain due diligence of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas. The main objective of this proposal is to help reduce the financing of armed groups and security forces through mineral proceeds in conflict-affected and high-risk areas by supporting and further promoting responsible sourcing practices of EU companies. Of course, supply chain diligence is not limited to the extractive industries and areas of conflict.
Annex 1 – List of additional and ongoing actions to be carried out across Government
EU and Multilateral Efforts [page 20]
“6. Support the implementation of the Regulation establishing an EU-wide system for supply chain due diligence of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict-affected and high-risk areas.”
Trade and Investment [page 21]
“18. Provide advice to business enterprises of the possible risks of human rights situations when operating in conflict affected areas.”
Supporting business respect for human rights in conflict-affected areas
Italy recognizes the importance of respecting human rights especially in conflict-affected areas whereas the promotion of human rights may yet represent a fundamental mean to guarantee peace and security.
On this basis, Italy can draw on best practices of awareness raising and training activities with regard to conflict minerals, and in particular the gold sector, in line with the OECD due diligence and relevant EU regulation. Furthermore, the Government is involved in the process of elaboration of a EU Regulation “setting up a Union system for supply chain due diligence self-certification of responsible importers of tin, tantalum and tungsten, their ores, and gold originating in conflict affected and high-risk areas” for a responsible trading strategy from minerals from conflict zones.
- Further promote the knowledge of the OECD due diligence guidance ‘Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones’ and ‘Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas’, encouraging and supporting SMEs to follow as well this guidance tools.
- Include human rights impact of economic activities in the programs and activities of awareness raising and capacity development aimed at the respect of human rights in conflict affected countries and high-risk area to be devised and implemented through specific programs by the National Agency for International Cooperation;
- Reinforce the action of the Italian Development Cooperation towards gender equality also by supporting women economic empowerment in post conflict countries, in line with the three pillars of the United Nations (peace and security, development, human rights) and the operational and normative framework developed within the UN Security Council Resolution 1325 “Women, Peace and Security”.
Italy’s Updated NAP
III. ITALY’S EXPECTATIONS TOWARDS BUSINESS
In 2017 EU passed the new Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. The Regulation meets the EU countries commitments to breaking the link between armed conflicts, crimes and illegal exploitation of minerals which often implies serious human rights abuses. EU companies in the supply chain are required to adopt due diligence to ensure they import these minerals and metals from responsible and conflict-free sources only. The new Regulation will take effect on 1 January 2021.
- Implement the Regulation (EU) 2017/821 on due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas
The Lithuanian NAP makes no reference to conflict-affected areas.
Part III – NAP
3. Government’s Response
3.2. A joint work program (pg.31)
- Preparation of the implementation of the European regulation regarding conflict minerals in Luxembourg.
Part I – Rational Framework for the development, adoption and implementation of the NAP
2. National Context
2.2. Governmental program (pg.17)
The government has reaffirmed its commitment to the values of human rights in the governmental program adopted in 2013, and demonstrates its sense of responsibility in this area, particularly in its external initiatives:
- “Luxembourg will continue to work for the prevention of conflicts, for the preservation and consolidation of peace and development, with the conviction that there is an intrinsic link between security and development which is a condition of stability and democracy around the world and that we will not be able to obtain lasting peace and security, nor development, without the respect of human rights. Luxembourg is constantly working in favour of fundamental rights, public freedoms and the promotion of the rule of law.”
The only mention of conflict in the Dutch NAP is in relation to conflict minerals and OECD guidance.
3.1 An active role for the government
The OECD Guidelines Proactive Agenda [page 15]
“A multi-stakeholder approach to conflict minerals has proved highly successful in preventing funds being channelled into the civil war in the DCR.”
3.3 Clarifying due diligence
Raising companies’ awareness [page 23]
“As mentioned above, the OECD has published a guide on responsible supply chains for conflict minerals and is working on a guide for responsible investment in agriculture supply chains.”
Section 2.3: State ownership and practice for supporting the business sector
Responsible management [page 23]:
Another criterion concerns serious violations of individual rights in war or other conflict situations. In 2014, the council reviewed a number of cases of human rights violations in connection with extraction of natural resources, agriculture, food production and textile manufacturing.It follows from the mandate from the Ministry of Finance to Norges Bank that in certain cases the GPFG is prevented from investing in government bonds. The GPFG is not a foreign policy instrument, and only in special cases of comprehensive international sanctions or measures that Norway has endorsed, has such restrictions been imposed on investing in government bonds.
Section 2.6 Human Rights in Conflict Areas
Companies themselves have a responsibility to identify serious risks connected with areas that have been or are affected by conflict. There is an increasing demand from the business sector for dialogue and cooperation with the public authorities on security, risk assessment and corruption in conflict areas and demanding markets in these areas. The Ministry of Foreign Affairs is the contact point for companies in matters of security abroad.[paragraph 1, page 26]
…the same section lists measures undertaken or planned by Norway regarding conflict affected areas [page 26], which include: “Strengthen the dialogue with the business sector through the missions abroad on the risks associated with human rights violations, security concerns and corruption in conflict areas.
Section 3.2 Responsible Business Conduct [page 32]:
Political unrest and conflict entail a particularly high risk of human rights abuses. Companies that operate in such areas should therefore exercise particular due diligence if they are to avoid becoming involved in such abuses. A typical example is abuses perpetrated by security personnel hired to protect the company. There is also a higher risk of corruption, illegal transactions, sexual abuse and other forms of violence against civilians.
Compliance with Legislation [page 36]:
In some geographical areas, such as conflict-affected areas, a company may unintentionally enter into a business relationship with an enterprise, such as a security company, that is guilty of gross human rights abuses. In such a situation, the Norwegian company should be aware that this may have legal consequences such as liability. The Norwegian Penal Code of 2005, which entered into force on 1 October 2015, also applies to certain punishable offences committed on behalf of an enterprise registered in Norway when the offence is also punishable under the law of the country where it has been committed.
Responsibility to Respect Human Rights page 31]:
In cases of armed conflict companies should respect the standards laid down in international humanitarian law.
Pillar II: The corporate responsibility to respect human rights
10. Planned and ongoing activities [page 37]
“(…)3. Increasing the involvement of foreign institutions in issues related to human rights and business, including local laws and enterprise operations in Poland, with a view to exercising human rights, with particular regard to the situation of armed conflicts”.
Principle 7 – Conflict-affected areas
For the time being, in conflict-affected areas, Slovenia provides humanitarian aid only in the form of donations to international organisations. Slovenia appeals to all actors involved in conflicts, including economic operators, to respect humanitarian principles and international humanitarian law. (pg. 29)
South Korea’s NAP makes no reference to conflict-affected areas.
Guiding Principle 7
The measures adopted regarding Guiding Principle 7 are incorporated to the obligations corresponding to the State under International Humanitarian Law in situations of armed conflict and in accordance with International Criminal Law and, in particular, those derived from signing of the Rome Statute of the International Criminal Court. In this context, it should also be noted that Spain is part of the Montreux Document on the relevant legal obligations and good practices of States with regard to the operations of private military and security companies during armed conflicts.
“The Government, through its representations abroad, will inform companies about the risks involved in their business activities and relationships, especially in areas affected by conflicts.”
“Within the framework of the implementation of the II National Action Plan on Women, Peace and Security, the Government will develop tools and action guides directed to companies on how to address the risk of sexual violence and gender violence in conflict situations.”
“The Government undertakes to include clauses on respect for human rights when contracting private military and security services in accordance with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Official Officials (1990), the Code of Conduct for Law Enforcement Officials (1979) and the Arms Trade Treaty (2013).”
“The Government will promote the application of the OECD Due Diligence Guide for Supply Chains Responsible for Minerals in Conflict or High Risk Areas.”
“The Government will participate in multilateral efforts aimed at improving the prevention, mitigation and remedy of situations in which companies are involved in serious human rights abuse.”
2 The corporate responsibility to respect human rights [page 13]
“The Government’s clear expectation is that companies operating in Sweden or abroad respect human rights in all their activities. This means that their business activity should not cause, contribute or be linked to human rights abuses, not least in conflict-affected areas, and that they should act to prevent such abuses. Similarly, they should address adverse human rights impacts with which they are involved.”
Annex: Measures taken [page 22]
The State as actor
- “The conduct of companies in relation to armed conflicts is highly relevant to respect for human rights. Sweden has proposed sharper formulations in the draft regulation on responsible trade in minerals from conflict areas that is currently being discussed in the EU. In other words, we consider it should be mandatory for importers from particularly problematic countries to obtain certification. Sweden is carrying out awareness-raising activities on this issue and supports the OECD’s work on how companies are to identify risks in the supply chain and avoid trade in conflict minerals (OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas).”
Annex: Measures planned [page 27-28]
How can the State support the business sector?
- “At Swedish embassies, knowledge about CSR and the UN Guiding Principles on Business and Human Rights will be enhanced through training initiatives. Embassies should use their local networks for Swedish and other companies, government agencies, trade unions and NGOs for support, cooperation and dialogue on how best to respect human rights. Embassies should be prepared to capture information about potential problems related to human rights and Swedish companies, especially in conflict-affected countries.”
2 National Action Plan on Business and Human Rights 2020-23
2.1 Pillar 1: state duty to protect
Guiding Principles 1 to 3
2.1.2 Operational principles: legislative and information policy measures
Measure 2: Security and human rights
The federal government should ensure that business enterprises which are subject to the Federal Act on Private Security Services Provided Abroad (PSSA) meet their human rights obligations. The PSSA prohibits security firms based in Switzerland from participating directly in hostilities in the context of an armed conflict, and from engaging in activities that could facilitate human rights abuses.
Switzerland and the ICRC [International Committee of the Red Cross] were the driving force behind the Montreux Document on private military and security companies.17 The purpose of the intergovernmental document is to promote respect for international humanitarian law and human rights by private military and security companies (PMSCs) operating in situations of armed conflict.
Measure 7: Reduction in human rights risks associated with gold extraction and trading
Switzerland will continue to support the implementation of OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and other relevant guidelines. As recommended in the above report, it will explore the possibility of granting the Central Office for Precious Metals Control wider responsibilities, including with respect to transparency on the provenance of gold imported to Switzerland.
2.1.4 Business respect for human rights in conflict-affected areas
Guiding Principle 7
Given the heightened risk of human rights abuses in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved in such abuses or lead State entities to commit human rights violations. The federal government expects companies operating in conflict-affected and high-risk areas to conduct due diligence in a way that takes local circumstances into account. This requires the adoption of a conflict-sensitive approach based on human rights and observance of the ‘do no harm’ principle (consideration of problems intrinsic to fragile contexts).
Measure 13: Guidelines on human rights due diligence in conflict-affected and high-risk areas
Guidelines on human rights due diligence in conflict-affected and high-risk areas have been drawn up at international level and adopted by various OECD members. The Federal Council works at international level to advance the development, promotion and implementation of global standards. Switzerland also supports the implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. It is also a member of the multi-stakeholder group that manages the implementation, dissemination and continued development of these guidelines. The OECD Due Diligence Guidance is aimed primarily at companies involved in the extraction and trading of commodities in conflict-affected and high-risk areas, but it also applies to manufacturers of products containing minerals which operate in the downstream value chain and are required to exercise due diligence.
In addition, the federal government supports a project led by the UN Working Group on Business and Human Rights that aims to clarify the practical steps that companies, investors and States should take to prevent and combat business-related human rights abuses in conflict, post-conflict and fragile contexts.
The EU adopted Regulation 2017/821 of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas. The relevant provisions will take effect on 1 January 2021. In accordance with the Federal Council decision of 14 August 2019, the FDJP is mandated to examine the introduction of a mandatory due diligence in the area of “minerals from conflict areas”. In the meantime, on 18 December 2019, the Council of States adopted a regulation on this issue as part of the preparation of an indirect counter-proposal to the popular initiative for responsible businesses. The National Council has not yet commented on this. The Federal Council is of the opinion that it should await the end of the parliamentary debates.
|Develop, promote and implement specific guidelines in respect of high-risk, conflict-affected areas.
Explore possible measures that are consistent with international rules, including a bill to be submitted for consultation.
|Example of the federal government’s contribution to organisations developing these guidelines.
Explore possible measures that are consistent with international rules, including a bill to be submitted for consultation.
|FDFA [Federal Department of Foreign Affairs],
EAER [Federal Department of Economic Affairs, Education and Research],
FDJP [Federal Department of Justice and Police].
Measure 14: Advisory and support services provided by Swiss representations abroad
Swiss representations abroad are well placed to raise awareness of human rights issues among businesses and provide country-specific advice. A number of representations in conflict-affected areas have developed innovative initiatives based on the UN Guiding Principles – largely on an ad hoc basis –to promote respect for human rights by Swiss business enterprises. The federal government will involve Switzerland’s representations abroad more closely in its efforts to raise awareness of and provide support for the implementation of human rights by business enterprises. Such efforts may include training and awareness-raising for embassy staff, encouraging the sharing of experiences between representations and with the relevant federal agencies in Bern. …
Measure 21: Support for UN bodies in charge of promoting the UN Guiding Principles
The federal government will continue to lend political and financial support to the UN Working Group, the Office of the UN High Commissioner for Human Rights and the annual UN Forum on Business and Human Rights in Geneva. It will work with these bodies on several projects that: …
– clarify the practical steps that States, business enterprises and investors should take to prevent and combat business-related human rights abuses in conflict and post-conflict situations;
The UK 2013 NAP states in Actions taken that [page 9]:
“To give effect to the UN Guiding Principles, we have:
(v) taken account of business activity in conflict and fragile states, or countries with high levels of criminal violence, within the Building Stability Overseas Strategy. Companies operating in these difficult environments have an important role to play in contributing to stability, growth, development, prosperity and the protection of human rights. We support the implementation of the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones. We will also continue to help develop, and monitor implementation of, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High-Risk Areas. The Government will also continue to encourage higher standards in the diamond supply chain.”
The UK 2016 Updated NAP makes direct reference to conflict affected areas in the section The State’s Duty to Protect Human Rights noting that the UNGPs “recommend that states should … Support businesses in conflict affected contexts”. The UK 2016 Updated NAP discusses actions already taken by the Government, which include among others [page 8], taking:
“account of business activity in conflict and fragile states, or countries with high levels of criminal violence, within the Building Stability Overseas Strategy. Companies operating in these difficult environments have an important role to play in contributing to stability, growth, development, prosperity and the protection of human rights. We support the implementation of the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones. We will continue to promote implementation of the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict Affected and High-Risk Areas.”
Facilitating RBC By Companies [page 17]
“Given the heightened risk of serious human rights impacts in conflict-affected areas, the U.S. government particularly encourages corporate due diligence and reporting under such circumstances.”
Outcome 3.3: Capacity Building and Technical Support to Promote Enabling Environments
New Actions [page 19-20]
“Support for Reducing Land Conflict in West Africa: State is supporting a program to reduce land conflict in Sierra Leone, Liberia, and Guinea by strengthening the capacity of civil society organizations to work on land rights and tenure issues as they relate to the UN Guiding Principles on Business and Human Rights. This program complements USAID’s existing investments in Côte d’Ivoire to support responsible business practices in the process of diamond sourcing, support country compliance with the Kimberley Process Certification Scheme, and stem the flow of conflict diamonds, while improving community land rights.” – Implementing Department or Agency: State
“Stakeholder Engagement in Extractive Industries in East Africa: State is funding a program to promote RBC in East Africa. The goal of the program is to strengthen civil society’s capacity to meaningfully participate in business and human rights initiatives in East Africa and to reduce conflict for communities in the operations of extractive companies.” – Implementing Department or Agency: State
Ongoing Commitments and Initiatives [page 20]
“Dodd-Frank Section 1502: Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) supports regional and international efforts to break the link between conflict and natural resources and prevent armed groups or abusive state forces in the African Great Lakes region from benefiting from the sale of certain natural resources that are sourced from the Democratic Republic of the Congo (DRC) or an adjoining country. Section 1502 requires certain companies to submit annually a description of the measures taken to exercise due diligence on the source and chain of custody of the four “conflict minerals.” Commerce will continue to work with the U.S. Geological Survey to issue annually a list of conflict mineral processing facilities to assist in this reporting and will develop recommendations on ways to improve accuracy and establish standards of best practices. State will continue to provide guidance to help companies ensure that their products and their suppliers’ products do not directly or indirectly finance armed conflict or result in labor or human rights violations. Through the Public-Private Alliance for Responsible Minerals Trade, State and USAID work in partnership with U.S. companies and civil society to support conflict-free sourcing from the DRC and African Great Lakes region.” – Implementing Department or Agency: State, USAID, SEC, Commerce, USGS
Annex II: Key Domestic Executive Orders and Regulatory Efforts [page 28]
“Combating Impunity for International Human Rights Violations: DOJ’s Human Rights and Special Prosecutions Section investigates and prosecutes international human rights violations using several U.S. statutes, including the War Crimes Act, 18 U.S.C. § 2441, and the Torture Act, 18 U.S.C. §§ 2340-2340A. Under these statutes, perpetrators may be held directly or indirectly responsible for specified war crimes or torture committed abroad, including in the course of conducting business, under the circumstances articulated in the statutes.”