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14 Dez 2023

Anri Abuladze and Michael Clements, Business & Human Rights Resource Centre

Corporate legal obligations, human rights, and conflict: increased risk and responsibility

Two months after the horrific killings and hostage-taking by Hamas in Israel on 7 October, the appalling killing of civilians, siege and humanitarian crisis in Gaza worsens by the hour - tens of thousands of civilian Palestinians are attempting to flee Israel’s bombardment. As pressure on the international community to help end the human suffering intensifies, so too does the spotlight on the responsibilities of businesses – and particularly tech companies – operating in that region, as well as other places similarly engulfed in conflict.

History tells us that corporate human rights violations in situations of armed conflict are hardly a new phenomenon. But rising geopolitical tension combined with the enormous influence gained by the private sector has expanded companies’ involvement in conflicts and deepened their responsibilities. The Russian invasion of Ukraine, the longstanding crisis in South Sudan, and the military coup in Myanmar, represent recent examples. In all such circumstances, the UN Working Group on Business and Human Rights has made clear that “[b]usinesses are not neutral actors; their presence is not without impact. Even if a business does not take a side in the conflict, the impact of their operations will necessarily influence conflict dynamics.”

So what does this mean for the day-to-day activities of firms located in or providing services, materials and resources to a conflict zone?  In sum: much more than a business-as-usual approach to operations and value chains.

Financial and reputational risks increase materially in such circumstances, accompanied by real threat of legal consequences, including corporate criminal liability, when things go wrong. Mitigating these risks means – at a minimum – that businesses have a core responsibility to undertake continuous, heightened human rights due diligence, per the UN Guiding Principles on Business and Human Rights to definitively “both know and show they respect human rights”. But it also means respect for international humanitarian law (IHL). Premised on The four 1949 Geneva Conventions and their Additional Protocols of 1977 and 2005, IHL applies to business actors as well as states, and seeks to limit the effects of armed conflict and the human suffering of those caught in it.  The ongoing criminal trial against two former executives of Lundin Energy (now Orrön Energy) over allegations of complicity in war crimes in South Sudan is instructive,  “sending a loud signal to international corporations that there is no impunity for international crimes”.

A growing list of corporations accused of IHL violations adds content to what this may mean for firms seeking to pursue profits at the expense of the rights, lives and well-being of civilians in conflict-affected areas.

For instance, global building supply firm Lafarge is under investigation for complicity in crimes against humanity in Syria.  Last year, two NGOs filed a complaint in France against TotalEnergies for complicity in war crimes  in the context of the Russian invasion of Ukraine, where academic Dr. Tara Van Ho has noted that “[b]usinesses which choose to stay [in Russia] should know they are incurring a responsibility to provide remedies for their contributions to war crimes – a responsibility Ukraine is likely to hold them to”. And the legal risks for the private sector operating in conflict has been most recently stressed by UN experts, who called on the international community, including businesses, “to immediately end the risk of genocide against the Palestinian people” amid allegations of crimes against humanity in the current Israel-Hamas conflict.

Arms companies and extractive firms, as well as private military and security companies, feature most prominently in the list of implicated business actors in armed conflicts. But technology firms – including surveillance companies, social media platforms, and telecommunications providers, follow closely behind. They will also play an increasingly central part in conflicts, as war moves from boots and tanks to drones, satellites, surveillance, and other digital tools and approaches. These firms would do well to take cognizance of their responsibilities and these risks now.

Tech companies can and must play powerful roles in, for example, ensuring access to what is often lifesaving information in conflict-affected areas.

But their products can also be used to facilitate repression and disinformation that can exacerbate these crises. The Israel-Hamas conflict is the most recent, disturbing example. Reports of disinformation, spread of harmful content, restriction of civilian communication, promotion of online hate speech, cyber-attacks against journalists and human rights defenders, and censorship are growing in numbers, with serious potential legal implications for relevant tech actors. Cases in point are the legal actions brought against Meta by Rohingya refugees from Myanmar and by Ethiopians regarding the social media giant’s role in the violence of the Tigray War. Both the alleged promotion of hate speech and violence in the midst of crisis and conflict.

The risk of corporate liability for poor human rights practices is further augmented by a changing regulatory environment. The EU Corporate Sustainability Due Diligence  Directive is likely to represent a watershed moment in corporate accountability efforts in this regard.  The recently enacted EU Digital Services Act may be another.  The Act seeks to inter alia, establish an accountability framework for online platforms, including by mandating the need for specific measures during armed conflicts, such as “adapting content moderation processes”. Although the EU Commission has faced some criticism from civil society for its recent information requests to X (formerly Twitter) and Meta on the basis of the Act for “dissemination of illegal content and disinformation” in the Israel Hamas conflict, the writing appears on the wall.

Given the critical role of tech companies in society, which is only augmented during times of conflict, expectations are rising for more human rights-centred practices. In addition to reputational risk, there are growing legal consequences where these companies – and others – fall short.