Mind the Gap: Assessing companies' strategies to avoid responsibility for negative impacts

Anna Triponel

July 13, 2020

The Mind The Gap consortium (comprising eleven civil society organisations – ACIDH, Afrewatch, Al Haq, Cividep, Conectas, ECCJ, Inkrispena, Poder, PremiCongo, SOMO and SRI), launched a new framework to identify and analyze the strategies used by corporations to avoid responsibility for their human rights and environmental impacts, in an effort to shed light on corporate impunity and help advocates and rightsholders deconstruct it.

The consortium focused its research on Brazil, the Democratic Republic of Congo, Indonesia and the occupied Palestinian territories, with some focus on developments in India, China, South Africa and Mexico. The consortium identifies 5 strategies (and 25 forms of these strategies) that companies use to avoid their responsibility.

Source: Mind The Gap, Corporate strategies to avoid responsibility for human rights abuses (July 2020)

The five strategies and 25 sub-strategies identified by Mind The Gap are:

1. Constructing deniability: Companies may attempt to “obscure their involvement in harmful business practices” to avoid scrutiny or preclude investigations into their practices and supply chains by:

  • Hiding behind complex supply chains;
  • Outsourcing high-risk activities;
  • Outsourcing recruitment and employment;
  • Disengaging irresponsibly; and
  • Refusing to disclose

2. Avoiding liability through judicial strategies: Corporations can avoid legal liability for harms—thereby undermining victims’ access to remedy—by leveraging sophisticated legal strategies and opaque business structures, including:

  • Abusing judicial process;
  • Engaging in jurisdiction shopping;
  • Shielding parent companies;
  • Settling cases; and
  • Taking States to international arbitration

3. Distracting and obfuscating: Businesses can use media and hide behind their brand platform to avoid taking responsibility for their human rights impacts, which is “problematic if it means that legitimate community, worker or public interests are disregarded or only responded to in a cosmetic, superficial manner.” Companies do this by:

  • Symbolically engaging communities;
  • Disseminating distorted information;
  • Engaging in fraudulent activities;
  • Manipulating scientific research;
  • Abusing standards; and
  • Diverting complaints through company-controlled mechanisms

4. Undermining defenders and communities: Companies may directly or indirectly use their power to “silence communities and human rights defenders in order to continue their business operations,” in an effort to continue harmful business practices unopposed by advocates. They do this by:

  • Attacking human rights defenders;
  • Filing lawsuits to intimidate critics;
  • Criminalising human rights defenders;
  • Dividing communities; and
  • Undermining unionisation

5. Utilising state power: Corporations can use their political and economic influence to pressure states and “obtain favourable treatment, security and impunity.” They may also help governments undermine human rights defenders and activists for their own gain. Companies can do this by:

  • Exploiting governance gaps created by states;
  • Avoiding regulations through corporate lobbying;
  • Aligning with repressive state institutions; and
  • Engaging State security forces

Mind The Gap also published a series of case studies to demonstrate how companies are using these strategies in practice.

“The strategies identified are not inherently illegal. In fact, some strategies that fall under our definition are legal and widely applied and accepted by managers, consultants, auditors, legal advisors, and other stakeholders as a way to protect corporate and shareholders’ interests. Nevertheless, while serving business interests, these strategies have harmful effects on society or the environment.”                      

Mind The Gap consortium, Harmful Strategies (July 2020)

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