Businesses should make sure that they are not complicit in human rights abuses.
What does it mean?
Complicity means being implicated in a human rights abuse that another company, government, individual or other group is causing. The risk of complicity in a human rights abuse may be particularly high in areas with weak governance and/or where human rights abuse is widespread. However, the risk of complicity exists in every sector and every country.
The requirement to respect human rights, pursuant to Global Compact Principle 1 and the UN Guiding Principles on Business and Human Rights, includes avoiding complicity, which is another way, beyond their own direct business activities, that businesses risk interfering with the enjoyment of human rights. The risk of an allegation of complicity is reduced (though not eliminated) if a company has a systematic management approach to human rights, including due diligence processes that cover the entity’s business relationships. Such processes should identify and prevent or mitigate the human rights risks with which the company may be involved through links to its products, operations or services.
Complicity is generally made up of 2 elements:
- An act or omission (failure to act) by a company, or individual representing a company, that “helps” (facilitates, legitimizes, assists, encourages, etc.) another, in some way, to carry out a human rights abuse, and
- The knowledge by the company that its act or omission could provide such help
The commentary to Principle 17 of the UN Guiding Principles on Business and Human Rights notes that “most national jurisdictions prohibit complicity in the commission of a crime, and a number allow for criminal liability of business” as well as allowing civil actions based on a company’s contribution to a harm. In the international context, the same commentary notes that “the weight of international criminal law jurisprudence indicates that the relevant standard for aiding and abetting is knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime.”
However, allegations of complicity are not confined to situations in which a company could be held legally liable for its involvement in the human rights abuse committed by another. The media, civil society organizations, trade unions and others may allege complicity in a far broader range of circumstances, such as where a business may appear to benefit from another actor’s abuse of human rights, and may lobby the company to play an advocacy role. The better view is that the presence of a company in an area and payment of taxes where egregious and systematic human rights abuses are occurring, without more, is not enough to make the organization complicit in those abuses. However, some societal actors take a different view and may lobby business to play an advocacy role in such circumstances.
Accusations of complicity can arise in a number of contexts:
- Direct complicity — when a company provides goods or services that it knows will be used to carry out the abuse
- Beneficial complicity — when a company benefits from human rights abuses even if it did not positively assist or cause them
- Silent complicity — when the company is silent or inactive in the face of systematic or continuous human rights abuse. (This is the most controversial type of complicity and is least likely to result in legal liability)
Why should companies care?
The business rationale for taking action to avoid complicity is the same as for Principle 1. In other words, not only is it the right thing to do – there is also a growing business case. Several factors combine to place human rights higher on business’ list of priorities.
Human rights issues have become increasingly important as the nature and scope of business has changed. Different actors have different roles to play, and it is important for business to be aware of the contemporary factors that have made human rights an organizational issue.
- Globalization: The growth in private investment has witnessed companies expanding operations to countries previously untouched by global markets. In some instances, these countries have poor human rights records and/or the capacity of the state to address these issues is limited. In these cases the role of business in respecting and supporting human rights is particularly important
- Growth of civil society: In some instances, the capacity of the state to address human rights issues has diminished. As a result, a steady alienation of people has occurred towards the public institutions that were established to serve them. Non-governmental organizations of all types and sizes have grown to fill the void, progressively influencing both public policy and the market agenda. They include new human rights, labour and corporate accountability organizations
- Transparency and accountability: The need for transparency in business practice has been highlighted both by globalization, the growth of civil society interests and some recent problems in the corporate sector. Advances in information technologies and global communications mean that companies can ill afford to conceal poor or questionable practices
- Crime: Where an international crime is involved, complicity may arise where a company assisted in the perpetration of the crime, the assistance had a substantial effect on the perpetration of the crime and the company knew that its acts would assist the perpetration of the crime even if it did not intend for the crime to be committed
- State-owned enterprises: State-owned enterprises should be aware that because they are part of the state, they may have direct responsibilities under international human rights law
What can companies do?
An effective human rights policy and conducting appropriate human rights due diligence will help companies address (though will not eliminate) the risk of being implicated in human rights violations, by knowing and showing that they took every reasonable step to avoid involvement.
Companies may wish to consider the following:
- Has the company made a human rights assessment of the situation in countries where it does, or intends to do, business so as to identify the risk of involvement in human rights abuses and the company’s potential impact on the situation?
- Does the company have explicit policies that protect the human rights of workers in its direct employment and throughout its supply chain?
- Has the company established a monitoring/tracking system to ensure that its human rights policies are being implemented?
- Does the company actively engage in open dialogue with stakeholder groups, including civil society organizations?
- Does the company utilize its leverage over the actor committing the abuse? If the company does not have sufficient leverage, is there a way to increase this leverage (e.g. through capacity building or other incentives or by collaborating with other actors)?
- Does the company have an explicit policy to ensure that its security arrangements do not contribute to human rights violations? This applies whether it provides its own security, contracts it to others or in the case where security is supplied by the State
- Ramifications of ending a business relationship, given the potential adverse human rights impacts of doing so
Actions that may be particularly helpful in avoiding complicity include:
- …respect international guidelines and standards for the use of force (e.g. the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the UN Code of Conduct for Law Enforcement Officials);
- …if financial or material support is provided to security forces, establish clear safeguards to ensure that these are not then used to violate human rights and make clear in any agreements with security forces that the business will not condone any violation of international human rights laws;
- …privately and publicly condemn systematic and continuous human rights abuses;
- …continually consult within and outside the company with relevant stakeholders, as part of a human rights due diligence process, during both pre-investment and post-investment stages;
- …raise awareness within the company of known human rights issues within the company’s sphere of influence;
- …identify those functions within the firm that are most at risk of becoming linked to human rights abuses, possibly even at the pre-investment/project exploration and planning stage, and where there might be opportunities to advance human rights;
- …conduct a human rights impact assessment consisting of an analysis of the functions of a proposed investment and the possible human rights impacts (intended and unintended) they may have on the community or region; and
- …identify internal ‘functional risks’ in the post-investment situations. This may involve looking at such functions as purchasing, logistics, government relations, human resource management, HSE (health, safety and environment), sales and marketing