Due diligence and the Voluntary Principles on Security and Human Rights in Colombia: The role of business in conflict and post-conflict situations
A. Romero
In February 2021 Business & Human Rights Resource Centre delivered a public forum and a workshop with civil society organisations as part of a project under the “Responsible Business Conduct for Latin America and the Caribbean” fund (RBCLAC or CERALC), with funding from the European Union and support from the Intl. Labour Organisation (ILO), the Organisation for Economic Cooperation and Development (OECD) and the office of the High Commissioner for Human Rights (HCHR).
Our main objective under this project is “Understanding and preparing for corporate mandatory human rights and environmental due diligence in Latin America”, focusing on the way due diligence may be discussed, analysed, implemented and assessed in the region. Due diligence is defined by the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights.
Since 2002, Colombia has implemented the Voluntary Principles on Security and Human Rights (VPs), a multi-stakeholder initiative that “promotes the implementation of a set of principles to guide companies in maintaining the safety and security of their operations, within an operating framework that ensures respect for human rights. These principles regulate the use of force by private security companies and by public security forces, within the implementation of business operations in risk areas.” According to one of its founders, the implementation of the VPs has saved the lives of staff and communities in areas affected by armed conflicts through the application of International Humanitarian Law.
Despite a peace agreement signed in 2016 that enabled a transitional justice system, Colombia has seen record killings of environmental, social and human rights leaders and ongoing severe human rights violations in the midst of its internal armed conflict. According to the Colombian Constitutional Court, corporations are not obliged to attend transitional justice tribunals.
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Yet alleged complicity with official armed forces and illegal factions responsible for crimes against humanity and war crimes has been cited as a key factor to the Truth Commission (CEV) established to piece together the historical narrative of the conflict in Colombia. With this in mind, the role of corporations in contexts of conflict must be examined.
The fight against impunity requires guaranteeing the right to truth. All sectors of society, including the business, military and political sectors, should urgently provide any relevant information they have to allow CEV to fulfill its mandate, which will end in November 2021. OHCHR also calls on State institutions to urgently provide the most complete and detailed information to CEV.Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General on the situation of human rights in Colombia
For this reason, when the UN Working Group on Business and Human Rights (UNWG)asked for contributions for the preparation of its report on the role of business in conflict and post-conflict situations, BHRRC welcomed the opportunity to engage in a conversation with Colombian civil society organisations and members of the National Roundtable on Business and Human Rights that produced a written contribution delivered last year.
In light of important contributions provided by the UNWG in its 2020 report “Business, human rights and regions affected by conflicts: towards heightened action'”, this Public Forum was proposed as a space for Colombian society, with perspectives from business, government and academia, to reflect on the challenges and opportunities presented by the UNWG recommendations and analyse how corporate human rights due diligence can become a core feature of peace-building and reconciliation in a country affected by a serious humanitarian crisis in the midst of the COVID-19 pandemic and sustained attacks against environmental, territory and human rights defenders.
Main recommendations from the UNWG report:
To States:
- Home and host States should use their key policy tools and levers to ensure that business engages in conflict-sensitive heightened due diligence when operating in conflict-affected areas. This may include linking access to export credit, investment approvals and access to investment finance, to demonstrable heightened human rights due diligence.
- Embassies and investment-related and trade-related functions should provide conflict-sensitive advisory services and tools to the private sector, including to small- and medium-sized enterprises, to assist them in respecting human rights in conflict-affected settings.
- States should develop appropriate guidelines for business engagement in peacebuilding settings to ensure that businesses operate with respect for human rights and conflict-sensitivity.
- States should encourage multilateral institutions dealing with peace and security issues to promote business respect for human rights through the proactive engagement of business actors in peace and security processes that concern them.
- States should ensure that transitional justice mechanisms include all actors, including economic actors, and ensure that the role of business is fully considered within such mechanisms, consistent with core principles of transitional justice such as accountability, reparations and guarantees of non-repetition, as essential parts of effective remedy.
- States must actively pursue cross-border investigations and prosecutions of international crimes committed by corporate actors as part of a commitment to access to effective remedy.
- States, under the auspices of the United Nations or other international processes, should develop guidelines for human-rights based engagement with armed non-State actors.
To the United Nations
- The United Nations, in particular its peacekeeping, peacebuilding and mediation pillars, should develop a strategy on business, peace and security that embraces the Guiding Principles as a foundational component.
- The United Nations should ensure that an appropriate level of awareness is incorporated into its peace and security pillar on the issue of business, human rights and conflict, including by disseminating information about news, tools and research both within and outside the United Nations system, and by organising regular awareness-raising sessions for staff and Member States.
- The United Nations should establish robust interagency cooperation to ensure that all its entities confronted with a business presence in their operations in conflict-affected contexts do not work in isolation and share existing knowledge with the United Nations system.
- The United Nations peace and security pillar should strengthen its own knowledge and capacity and develop, in cooperation with relevant entities within and outside the United Nations system, basic tools and specific guidance notes and thematic briefs, for peacekeepers, mediators and peacebuilders.
To Businesses
- Seek advice from embassies and investment and trade-related functions to receive conflict-sensitive advisory services and tools to assist them in respecting human rights in conflict-affected settings.
- Engage in heightened human rights due diligence that incorporates tools from atrocity prevention and conflict prevention to augment their existing due diligence frameworks.
- Develop operational-level grievance mechanisms that have a conflict-sensitive approach.
- Commit to active engagement with local communities and groups in conflict and post-conflict settings.
- Ensure that a gender-responsive approach is used to develop heightened human rights due diligence and in grievance, remedy and transitional justice mechanisms.
- Actively participate in truth and reconciliation processes and provide reparations and guarantees of non-repetition as part of their commitment to building peace.
Public Forum
BHRRC
Panelists in the dialogue on 11 February 2021 included: Germán Zarama, OECD Focal Point for Latin America and the Caribbean; Anita Ramasastry, vice-president and member of the UN Working Group; Juan Pablo Bohoslavsky, independent international consultant and former UN Special Rapporteur on debt and human rights; Juan Carlos Monge, Deputy Director of the Office of the United Nations High Commissioner for Human Rights in Colombia; and Nicolás Mayorga, Coordinator of the Business and Human Rights Area of the Presidential Advisory Office on human rights of the Republic of Colombia.
There is broad agreement among various actors on the importance of due diligence - even moreso in situations of conflict. However, defining security more broadly is still a divisive issue. It is necessary to remember that human rights take precedence over business activities, and that the security of people takes precedence over the security of corporate infrastructure. Civil society groups and NGOs are calling for the implementation of enhanced due diligence to cover all business activities including supply chains. This enhanced due diligence should be especially robust in conflict zones, in line with the principles of proportionality and recommendations of the UNGPs and the OECD guidelines, including the Due Diligence Guidance for Responsible Supply Chains of Minerals in Conflict-Affected and High-Risk Areas.
It is important not to reduce the VPs and security to a two-fold approach - rather than being a matter between only the state and companies, the issue requires civil society to play a leading role, understanding that they are the main victims of human rights violations and that it is necessary to protect communities and human rights defenders within the framework of the VPs. In contexts like that of Colombia, it’s important to identify and act on the main factors that the UNWG presents as triggers and indicators that help governments and companies address human rights risks in conflict and post-conflict processes.
BHRRC
Transitional justice and due diligence in Latin America
The Colombia office of the HCHR highlighted the importance of the transitional justice system to overcome corporate impunity. Although it acknowledged that over 600 economic actors have been subject to investigations with the Attorney General’s office, the inclusion of businesses in the transitional justice courts would bring about more truth and justice to victims.
Latin America has significant experience in the field of transitional justice and past human rights atrocities related to military dictatorships and authoritarian rule. Addressing corporate complicity with these crimes constitutes an important reference point for those who litigate cases in the region.
The high number of atrocities, human rights violations and breaches of international humanitarian law happening in Colombia mean a tragedy for individuals, their families and communities. The UN reported 133 killings of social leaders and human rights defenders and over 66 massacres in the country in 2020 -- twice the numbers of 2019. Peace is an obligation to all, including to companies and governmental bodies. For this reason, the office stresses the importance of this constructive dialogue among diverse stakeholders in order to truly advance towards positive peace.
Latin America has significant experience in the field of transitional justice and past human rights atrocities related to military dictatorships and authoritarian rule. Addressing corporate complicity with these crimes constitutes an important reference point for those who litigate cases in the region.
When analysing cases in Brazil (for instance, the case of Volkswagen), Argentina, Uruguay and, more recently, Chile, researchers have unveiled the links between economic growth and the imposition of economic models based on repression and corporate abuse. Consequently, the relationship between economic authors and human rights abuses focuses on mechanisms to undo past wrongs and explain current tensions, like the case of the private pension funds in Chile.
In particular, experts recommend that judicial prosecution against companies consider Intl. Human Rights standards as a valid and necessary framework, especially to guarantee non-recurrence of corporate abuse, because of the urgent need to recognise imbalances of power and the dispossession of local communities for the sake of accumulation of wealth.
From the perspective of business-related multi-stakeholder initiatives regarding due diligence of companies in conflict situations like Colombia, the implementation of the VPs stresses that mining and energy companies are broadly in favour of a definition of security as a public good. In this regard, institutions like the Mining and Energy Committee on security and human rights (CME) has produced guidelines for relationships with private security companies and the official armed forces thanks to agreements with the Ministry of Defence and the support of a group of foreign governments. They consider that criticism by civil society organisations about the negative impacts of their member corporations should be addressed on a case-by-case analysis and that generalisations are a barrier to overcoming issues.
On the other hand, Colombia Guidelines, another multi-stakeholder initiative (in which the Ideas for Peace Foundation acts as technical secretariat, with the engagement of several companies and governmental institutions) highlights that many companies have had an important role in peacebuilding, even during the most critical moments of the armed conflict prior to the signing of the Peace Accords with the FARC guerrilla group. This initiative concurs with the UNWG report idea that more intense violent conflicts present the highest risks for human rights abuse related to corporate operations and require a preventative approach as well as proactive action by businesses and the government.
As we mark the 20th anniversary of the VPs (which many recognise as a strong basis for the UNGPs), there are opportunities to analyse the environmental and human rights impacts of the armed parties and in particular, the role that corporations should play to bring about remedy and respect for human rights.
Nevertheless, there is the need to continue assessing the role of companies in the right to free, prior and informed consent (FPIC) and land-grabbing and the presence of illegal actors that benefit from weakened state mechanisms in the field, mostly related to drug trafficking and gold mining. On this basis, all participants agreed that the transitional justice system offers an opportunity to promote access to justice in cases of corporate abuse and that the weaknesses shown by the National Action Plan present a challenging scenario.
As we mark the 20th anniversary of the VPs (which many recognise as a strong basis for the UNGPs), there are opportunities to analyse the environmental and human rights impacts of the armed parties and in particular, the role that corporations should play to bring about remedy and respect for human rights. The relationship between environmental harms occurring during armed conflicts and corporate accountability is an integral element of the components of effective reparations: restitution of rights, means of satisfaction, non-recurrence and compensation.