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19 Oct 2023

Heather Elaydi, FIAN International and Ayushi Kalyan, on Geneva Solutions

Binding Treaty should address accountability gaps for corporations under international humanitarian law, experts say

"As countries wage war, corporations profit – time for robust international treaty", 19 Oct 2023

Last week Israel doubled down on its 16-year military closure and blockade of the Gaza Strip, halting humanitarian essentials including all food, water and fuel from reaching the population of 2.3 million. This decision, in violation of international humanitarian law, was taken by the Israeli state, but is being enforced with high-tech weapons supplied by corporations in the United States, Europe and Israel.

Despite a formal recognition in 2014 that companies have a responsibility to respect human rights, there is still no international legal framework binding them to do so. Next week, an intergovernmental working group, mandated by the UN Human Rights Council, will reconvene in Geneva...

The problem of business impacts on human rights and the environment is nothing new. But recent trends – such as growing corporate influence over governments, corporate capture of international institutions and the expansion of extractivist economies – have amplified those impacts and urgently need to be addressed. Harmful effects are particularly intensified during conflicts, occupations, wars and other crises where the rule of law is already disrupted and business activities may end up fuelling or sustaining the turmoil...

International humanitarian law (IHL) protects foodstuffs, agricultural areas (…) crops, livestock, drinking water installations and supplies and irrigation works from attacks, destruction or removal during conflict... Yet, IHL is insufficient in regulating businesses in conflict, thus requiring a more robust legal framework that incorporates human rights concerns...

In its preamble, the most recent draft for a legally binding treaty on businesses and human rights released in July, stresses that “states must protect against human rights abuses by business enterprises and respect and ensure respect for IHL in all circumstances”. This key obligation, if enforced across the value chain, would require that so-called home states, where businesses are based, respect IHL and ensure that firms operating abroad also abide by IHL.

While this obligation in itself is positive, the language in the latest draft of the text remains vague about the measures states must undertake to ensure that business activities do not cause human rights abuse and violations in occupation and conflict situations.

The previous version of the treaty included a requirement to ensure enhanced human rights due diligence measures are adopted and implemented to prevent abuses in contexts of conflicts, occupations or wars. This could possibly include tying in a conflict analysis in their risk-assessment measures and developing an exit strategy to suspend or terminate operations if needed. This minimum requirement, however, has since been removed.

It is also crucial that the draft specifies that merely conducting enhanced human rights due diligence should not absolve corporations and natural persons from other forms of liability in the event that they participate in or contribute to worsening a conflict...

As member states meet in Geneva next week for another round of negotiations, they must take seriously their responsibility to lay a solid foundation for the protection of human rights and the environment in these high-risk contexts...

Part of the following timelines

UN Intergovernmental Working Group elaborating a legally binding instrument on business & human rights

UN Intergovernmental Working Group releases updated draft of legally binding instrument on business and human rights (2023)