Our key takeaway: We know that the UN Guiding Principles (UNGPs) expect companies worldwide to conduct human rights due diligence, and we know that the level of human rights due diligence varies depending on the level of risk. The more severe the risks to people the company could be connected to, the more sophisticated this due diligence needs to be (aka heightened human rights due diligence). Makes sense, since the UNGPs are premised on looking at risks from the impacted stakeholders’ perspective. A new guide from UNDP with the UN Working Group on Business and Human Rights provides guidance and tools for companies who are operating in conflict-affected context, or who may be seeing warning signs that the context will become conflict-affected. The bottom line is the need to better understand the conflict and the company’s own role in it. Even if the company doesn’t think it has a role because it is striving for impartiality, its mere presence and activities in a conflict setting will necessarily influence conflict dynamics - and this needs to be considered as part of its heightened human rights due diligence.
UNDP, with the UN Working Group on Business and Human Rights, published ‘Heightened Human Rights Due Diligence for Business in Conflict-Affected Contexts: A Guide’ (June 2022):
- Heightened human rights due diligence: The guide makes clear that this is not about a new or different type of due diligence, but rather a heightening of expectations of human rights due diligence in certain situations. “The Guiding Principles do not specifically mention a different type of due diligence for contexts affected by armed conflicts and other situations of widespread violence, but 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’, action by States and due diligence by business should be heightened accordingly. Businesses in particular are required to conduct a ‘heightened’ version of human rights due diligence.” The guide notes that “[h]eightened human rights due diligence strengthens the understanding of the context where businesses operate and ensures that their activities do not contribute to violence by identifying flash points, potential triggers or the forces that are driving the conflict.”
- Conflict-affected areas: Although ‘conflict-affected area’ does not have one definition, the Guide notes that this refers to “a variety of contexts in which high levels of violence prevail.” These contexts have three distinctive features: “First, conflict will always create adverse negative impacts on human rights.” “Second, business activities in a conflict-affected area will never be ‘neutral’ and without impact.” The guide states further that “[e]ven if a business does not take a side in the conflict and strives for impartiality, its activities will necessarily influence conflict dynamics.” “Third, business should respect the standards of international humanitarian law in addition to internationally agreed human rights.” More specifically, the guide delves into the factors that would point to the need to conduct this heightened human rights due diligence, including international or internal armed conflict (regardless of intensity), non-conventional armed violence, military occupation, gross human rights violations - or any early warning signs of these occurring.
- Conflict analysis and human rights: The guide delves into the actions to take, and provides a range of tools to support companies with their heightened human rights due diligence. The expectations include carrying out a conflict analysis to understand the context in which the company is operating, linking the conflict analysis with the cycle of the company’s business activities, carrying out a human rights impact assessment, and taking appropriate action to avoid or mitigate negative impacts - taking issues identified by heightened human rights ie diligence into account. The tools provided include an action overview of what to do to conduct heightened human rights due diligence, a heightened human rights due diligence capacity assessment and a contextual factors checklist.