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Opinion

Revisiting the role of business in contexts of conflict and post-conflict: the case of Colombia

Mina de carbón El Cerrejón, Guajira, Colombia

Colombia’s longstanding internal conflict is currently affecting the lives of thousands of people, despite the 2016 Peace Accords. As the complex situation between civil, state and criminal actors continues, the country is one of two in Latin America – along with Argentina – to participate in the Voluntary Principles on Security and Human Rights. Both countries have also stated their commitment to the UN Guiding Principles on Business and Human Rights (UNGPs). But the ongoing conflict in Colombia is an issue of grave concern for human rights and business.

On 7 July 2020, the UN Working Group on Business and Human Rights (UNWG) announced its new project “UNGPs10+: New decade of implementation,” to be launched on the 10th anniversary of this UN soft law instrument in 2021. The same month, the UNWG presented its report on “Business, human rights and conflict-affected regions: towards heightened action” to the UN General Assembly.

Both initiatives represent an opportunity for civil society organisations in Colombia and the international community to call on the Colombian Government and private sector to address human rights from the perspective of access to justice. This would entail recognising the negative impacts of business on individuals, local communities, trade unions and the environment, and would go beyond the well-known discourse of business as a lever for development.

During the UNWG regional South American consultation regarding the UNGPs10+ issues like the ongoing failure of the UNGPs to address impunity for human rights abuses were brought up - in particular the grave situation of environmental activists, Indigenous and Afro-descendant populations, local peasant farming communities and leaders and human rights defenders who face escalating attacks, killings and intimidation over their opposition to or criticism of business operations or projects. In the past five years, Business & Human Rights Resource Centre has documented 2,851 such attacks worldwide. Colombia stands out as the most dangerous country for human rights defenders working on business-related issues.

Documentation only serves to underline the urgent need for what should be the priority: prevention of attacks. According to a recent statement by the head of the Colombia office of the High Commissioner on human rights, Juliette de Rivero, killings of social leaders and human rights defenders should not be treated as a matter of competing numbers between governmental sources and those of the UN and NGOs concerned about the situation. The focus should instead be “on preventing this violence, regardless of whether we are talking about 10, 20 or 100 cases”.

As the UNWG report highlights, “no company is neutral” in a context of conflict. They relate directly or indirectly with armed parties, making “heightened human rights due diligence” an imperative.

Towards the end of 2020 the Inter American Commission on Human Rights expressed "the worrying persistence of violence against human rights defenders and social leaders and signatories of the Peace Agreement, especially in territories historically affected by the internal armed conflict". Several of these territories overlap with large mining, oil, gas, coal and agribusiness projects, some of them allegedly established through forced displacement of rural communities from their collective or traditionally-owned lands - and this displacement is one of the main root causes of the armed conflict in Colombia. As the UNWG report highlights, “no company is neutral” in a context of conflict. They relate directly or indirectly with armed parties, making “heightened human rights due diligence” an imperative.

The UNGPs have been in place in Colombia since their enactment in July 2011. Initial guideline research was carried out in 2012-2013, and the National Action Plan on Business and Human Rights (“Plan Nacional de Acción sobre Derechos Humanos y Empresas”) was launched in December 2015. Since 2000, mining and energy companies operating in the context of the country’s longstanding armed conflict have also implemented the Voluntary Principles on Security and Human Rights (VPSHR): a voluntary initiative supported by a group of governments, companies and a few NGOs which offers guidelines for companies operating in conflict zones, in coordination with official armed forces and private security companies.

Buriticá, Colombia

But these guidelines and their effective implementation do not necessarily meet international human rights and international humanitarian law standards on human rights and environmental due diligence. This is most clearly apparent in cases of alleged complicity and direct involvement of governmental forces with illegal right-wing actors which, using different names, are the principal actors responsible for attacks against human rights defenders and social leaders, even in areas where illicit crops and criminal gold mining coexist with legal businesses.

Evidence seems to suggest that the initiative has not, in practice, led to reduced risk for social leaders and defenders who oppose operations by VPSHR members

Evidence seems to suggest that the initiative has not, in practice, led to reduced risk for social leaders and defenders who oppose operations by VPSHR members: in 2020, our research found that 44% of business-related attacks on defenders in Colombia were carried out against defenders who raised concerns about just five companies: AngloGold Ashanti, Big Group Salinas, Cerrejón Coal (non-operated Joint venture of Glencore, BHP and Anglo American), Ecopetrol and EPM. Glencore, BHP, Anglo American and AngloGold Ashanti are all members of the VPSHR.

The UNWG report recommends that “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.” While voluntary initiatives have made some important progress towards raising the bar on security and human rights in conflict situations, an approach focused on prevention of harm and access to justice is urgently needed, and impunity for attacks for defenders must be addressed through legal means.