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).