Complicity and accountability

Corporate involvement during and after a conflict is as an increasingly important issue in transitional justice. Companies can be involved in a variety of ways and at different levels of contributory influence. Instances of corporate complicity in human rights violations may range from direct involvement in the perpetration of human rights abuses, such as ordering death squads to forcibly displace communities, to more indirect forms of involvement, such as providing arms or simply funding to human rights-violating governments. According to the panellists, this makes corporate complicity an issue with many grey areas, and makes determining whether and to what extent a company was complicit a complex exercise. What is more, corporate actors cannot be held legally accountable under public international law, and soft law such as the UN Guiding Principles on Business and Human Rights leaves much space for interpretation regarding business behaviour and complicity in conflict settings.

How can corporate involvement be addressed in a transitional justice process? And how may corporate actors be involved during the process of peace-building and reconciliation? Professor Sabine Michalowski (University of Essex School of Law) emphasized the importance of involving corporate actors in the process of truth-seeking, as they bear the potential for revealing essential missing information about what happened in the past. The involvement of corporations in the South African Truth and Reconciliation Commission (1995) offers an important example in this respect, although the government failed to implement the recommendations for business in the aftermath. Irene Pietropaoli, Business and Human Rights Consultant for Amnesty International in Myanmar, added that in the case of Myanmar, corporations may be involved in the process of land restitution, as a way of addressing corporate abuse by means of reparations to victims.

Michalowski also highlighted insights from the on-going implementation of corporate justice in Colombia. These show how complex an integration of the corporate angle can be. Beside already manifold political tensions to overcome in a transitional justice process, the inclusion of the corporate layer in the conflict makes it even more complicated. As a result, the risk of impunity looms. If a peace process tries to tackle too many issues at the same time, there is a great risk that “you might end up with very little,” she contended.

Continuous engagement

How should companies interact with governments at times of political upheaval and erupting violence? Some would argue that leaving a country at a time of political turmoil is the best solution. Yves Nissim, Vice-President, Head of Transformation and Operation in CSR at Orange, for the most part disagreed with this position. According to him, such turmoil as well as the transition to peace and stability is first and foremost the responsibility of the state. Business may be able to have some leverage over the state, so according to him, continuous engagement with governments, even controversial ones, to seek solutions is a much better approach than leaving the country. What is more, leaving could create a vacuum that may be filled by a company that is less concerned with its social responsibility in the political reality the country finds itself in.

Taking action to avoid complicity in human rights abuse does not have to be an abrupt, confrontative measure, eventually opposing a demand by a non-democratic regime. Smaller steps can also go a long way, as Nissim illustrated with a best practice from the telecommunications industry of listing transparently how many requests a government made to the company. Even when not disclosing the content of these requests, this allowed the company to demonstrate to internal and external stakeholders a significant increase of government requests. Such an increase indicates an increasing interest in customer data by authorities, which may be used for purposes of surveillance for counter-terrorism measures, but also for identifying critics of the governments. 

The company as part of the solution

The discussion of the role of the private sector in countries in transition goes beyond questions of corporate complicity, reconciliation and reparation. In what concrete ways may companies make a positive contribution in contexts of conflict and transition? Jo Zaremba, Livelihoods Officer at UNHCR, discussed the involvement of the private sector in her work with people directly suffering the consequences of conflict: refugees. She noted a “fundamental shift” in the context of her work of seeing companies more and more as part of the solution rather than merely as an actor providing material contributions and services for short-term relief. By offering employment, the private sector – particularly small and medium-size enterprises – provide a crucial source of inclusion in the market, along different parts of the supply chain.

Market inclusion and employment opportunities are not only important in the context of refugee integration, but also in the transitioning countries themselves. Pietropaoli highlighted that in the massive inflow of investment into Myanmar, a group of Western brands was able to lobby for a raise of wages for factory workers, adding in very practical steps to better post-conflict living conditions for the local population.

Cooperation to address challenges

For companies, operating in an environment of transition presents many challenges that require innovative action. Nissim highlighted a number of such challenges his telecom company had encountered when operating in countries that had experienced revolutionary bursts, such as Egypt and Tunisia. Times of transition give rise to situations that are not included in the license agreements corporations have with the governments of these countries in order to be able to operate, so they require different ways of responding. In the case of the information and communication technology sector, to which Orange belongs, the industry established the Telecommunications Industry Dialogue, which published its Guiding Principles on Freedom of Expression and Privacy in 2013 to find a common response to threats in operating countries.

Key messages and recommendations

Transitional justice processes in today’s world require the involvement of non-state actors, including corporate actors, as the main perpetrators of human rights violations in conflicts frequently involve other actors than the government. In particular in cases where corporate abuse has been a significant part of the conflict, the peace process needs to reflect this.

With respect to companies’ role in contributing to peace and stability, the panel discussion made clear that the private sector is crucial for short-term relief as well as long-term opportunities, most importantly employment. Corporations may be able to yield their leverage over the state through continuous engagement with governments or sector-level cooperation to cope with ever-changing challenges that operating in an environment of transition bring to the table.

Listen to the panel discussion in our podcast here