Operating in conflict-affected contexts: An introduction to good practice
“Businesses are not neutral actors; their presence is not without impact. Even if business does not take a side in the conflict, the impact of their operations will necessarily influence conflict dynamics.”UN Working Group on Transnational Corporations, Business, human rights and conflict-affected regions: towards heightened action
Companies face heightened challenges respecting human rights when operating in conflict-affected areas. Russia’s military invasion of Ukraine began on 24 February. The UN General Assembly has condemned the aggression and called on Moscow to “unconditionally withdraw all of its military forces from the territory of Ukraine.” The Office of the High Commissioner for Human Rights is monitoring civilian casualties, mostly “caused by the use of explosive weapons with a wide impact area, including shelling from heavy artillery and multi-launch rocket systems and air strikes” and that real figures were expected to be “considerably higher”. By 7 March, it had recorded 1,207 civilian casualties in Ukraine, which include 406 killed and 801 injured.
Recognising this ‘act of aggression’ and that international armed conflict is underway, businesses and investors operating or investing in the region, and especially those with links to the Russian state, must avoid contributing to violations of international humanitarian law. The UN Guiding Principles on Business and Human Rights (UNGPs) and related materials provide guidance, outlining the need for heightened human rights due diligence processes and adopt a conflict-sensitive approach due to the severe risk of gross human rights abuses. A conflict-sensitive approach emphasises effectively preventing, managing and addressing conflict, including by seeking to understand conflict dynamics and related risks.
Factors such as weakened State governance, increased presence of security forces and armed groups, emergency measures, complex operating environments, and a history of grievances and injustices can further increase the risk that a company’s actions may exacerbate conflict or contribute to human rights abuses.
To provide guidance to responsible business assessing their situation, Business & Human Rights Resource Centre referred to materials developed by the Geneva Centre for Security Sector Governance and the International Committee of the Red Cross on guidance and good practices for companies operating in conflict-affected contexts. This material, which we have adapted below, should be helpful for companies operating in Ukraine and Russia:
Understand when and where the rules and principles of international humanitarian law apply. In situations of armed conflict, additional legal obligations may apply to companies and their personnel. International humanitarian law covers the entire territory of the States involved in a conflict, regardless of whether or not combat takes place there. It encompasses both international and non-international conflicts, including situations of military occupation.
Be aware of the potential for liability in relation to international humanitarian law. Companies—as legal entities and through associated individuals—have increasingly been brought before international tribunals and national jurisdictions for violations of international humanitarian law. Failure to comply may result in civil and criminal liabilities, or in serious cases, prosecutions for war crimes, crimes against humanity, or other violations of the Geneva Conventions. See for example the cases against Lundin Energy and Lafarge.
Commit to complying with international humanitarian law and update company policies accordingly. Ensure all company staff are made aware of this commitment and share relevant information on corporate compliance with international humanitarian law. Note that conflict does not absolve companies of their responsibility to comply with human rights standards.
Ensure company operations, actions, and personnel (including security providers) neither violate international humanitarian law nor intensify violence in conflict-prone regions. Be aware that company operations, business relationships, and financial and resource flows can exacerbate conflict. Analyse and implement a plan to address and reduce these risks, in partnership with affected communities, experts, humanitarian groups, and other stakeholders.
Undertake heightened due diligence when operating in conflict-affected contexts or situations where there is risk of conflict occurring. Take a conflict-sensitive approach to analysing impacts and engaging with communities, particularly those in vulnerable situations (including women, minorities, children, and marginalised groups). Reassess needs and impacts as conflict emerges or dynamics change. In some situations, full impact assessments may not be possible; seek to identify actual and potential impacts on human rights and conflict dynamics to the best extent possible within the context. Incorporate a conflict analysis.
Carefully weigh the human rights implications of withdrawing from the conflict-affected context versus the human rights implications of staying. If a company's operations exacerbate the conflict or cause or contribute to immitigable human rights harms, it may be necessary to withdraw in order to avoid causing harm. On the other hand, if a company provides key services, withdrawing may have more negative than positive impacts. Be aware that as changes occur over time, the balance of positive versus negative effects may shift.
Have a clear exit strategy. Even if the company does not intend to withdraw, it should prepare an exit strategy in advance, should the circumstances change. Create plans to ensure the security of both departing and remaining employees and contractors. As safely as possible, provide notice to communities, suppliers, workers, and other partners. Enact a plan to mitigate the loss of employment and income for employees and contractors, with consideration of both short-term and long-term strategies that make sense in the local context. If the company supports community activities and programmes, consider short-term and long-term plans to address any gaps that arise from leaving (for example, short-term aid and long-term handover plans).
Implement a monitoring strategy. Assess signals that the security environment is changing, including for example new military operations, imposition of emergency laws, or a rhetoric of hate towards specific groups. Coordinating with NGO security networks, established during times of conflict, can be useful in this regard.
These best practices are drawn from the Addressing Security and Human Rights Challenges in Complex Environments Toolkit by the Geneva Centre for Security Sector Governance and the International Committee of the Red Cross. A companion piece is this Fact Sheet on Armed Conflict and Responsible Security Management for Companies. An updated version of the toolkit will be released in Summer 2022. Read more about business and international humanitarian law here.