5 Strategies for Corporations Avoiding Risks of Complicity in Human Rights

Human rights must be protected, respected and fulfilled by different actors, commonly named as “duty bearers” of rights. In practice, these duty bearers hold different level of responsibilities and leverage. At the core of the Business and Human Rights vision, companies have the responsibility to respect human rights. However, in their operations, they often operate in environment when they have limited leverage to upload respect of human rights. This article clarifies the notion of duty bearer of human rights, exposes the multiplicity of situations where they can be hold accountable from complicity, and offers strategies to avoiding infringing human rights when operating in environments with limited leverage.

What is a duty bearer in human rights?

A duty bearer, in the context of human rights, refers to an individual, organization, or entity that has a responsibility or obligation to protect, respect, and fulfill the human rights of others. This concept is central to the understanding and implementation of human rights principles and obligations.

There are various types of duty bearers, including:

1. State Duty Bearers: Governments and state authorities are primary duty bearers responsible for upholding and protecting the human rights of individuals within their jurisdiction. This responsibility is outlined in international human rights agreements and domestic laws. State duty bearers are obligated to respect, protect, and fulfill human rights for all people, regardless of their nationality, ethnicity, gender, religion, or other characteristics.
2. Non-State Duty Bearers: This category includes non-governmental organizations (NGOs), corporations, private entities, and individuals that may have responsibilities to respect and protect human rights in certain circumstances. For instance, corporations are increasingly recognized as having a responsibility to respect human rights, especially in relation to their employees, consumers, and communities affected by their operations.
3. International Duty Bearers: International organizations and bodies, as well as their member states, may also be duty bearers with responsibilities related to human rights. International organizations often have obligations to uphold human rights in their operations and in the actions they take collectively or individually.

Duty bearers are expected to ensure that the rights enshrined in international human rights conventions and national laws are respected, protected, and fulfilled. This includes taking proactive measures to prevent human rights violations, addressing any violations that occur, and providing remedies for those whose rights have been infringed. The concept of duty bearers helps establish accountability and promotes the protection and advancement of human rights at both national and international levels.

What can be considered to be duty bearer complicity infringing human rights?

Duty bearer complicity in infringing human rights refers to situations where individuals, organizations, or entities that have a duty to protect and uphold human rights are directly or indirectly involved in or support actions that violate human rights. This complicity can take various forms and can occur at different levels. Here are some examples:

1. Direct Participation: Duty bearers can be complicit in human rights violations through direct involvement in actions that infringe upon human rights. This could involve law enforcement officers, government officials, or others carrying out actions that directly harm individuals’ rights, such as torture, extrajudicial killings, or unlawful detentions.
2. Failure to Act: Not taking appropriate action to prevent or stop human rights violations when duty bearers have the capacity to do so can constitute complicity. This might involve law enforcement officials ignoring or turning a blind eye to abuses or failing to intervene in situations where human rights are being violated.
3. Support or Endorsement: Providing support, encouragement, or endorsement to individuals or groups that commit human rights violations is another form of complicity. This could include financial or material support, or even ideological or political support for actions that infringe upon human rights.
4. Covering Up Violations: Duty bearers can also be complicit if they engage in efforts to conceal or cover up human rights violations, thereby obstructing justice and accountability. This might involve falsifying records, intimidating witnesses, or obstructing investigations into human rights abuses.
5. Inaction in Response to Knowledge: If duty bearers become aware of human rights violations and fail to take appropriate action to address them, they can be considered complicit. This could involve a lack of investigation, failure to hold perpetrators accountable, or inadequate responses to remedy the harm caused.
6. Policy or Legislative Complicity: Creating or endorsing laws, policies, or regulations that directly infringe upon human rights, or failing to amend or repeal such laws when their impact on human rights is clear, can be seen as complicity. For example, dual behavior of companies formally pushing for climate action, while engaging concurrently with regulators to minimize climate regulation can increasingly be sees as complicity in view of the human right implications of climate related impacts on people.
7. Failure to Provide Adequate Protection: Duty bearers, particularly states, have an obligation to protect individuals from human rights abuses by third parties. If they fail to take reasonable steps to prevent and address abuses by non-state actors (such as private individuals, corporations, or armed groups), they may be complicit in the resulting human rights violations. The reverse can operate equally. While respecting local laws, non-state actors may be complicit in absence of ensuring protection of their employees and other right holders.

What are the risks of corporate complicity? 

Under the lens of accountability, complicity is a key concept for each duty-bearers. For companies the risk of corporate complicity is more common than direct human rights abuses by companies. The 2011 UN Guiding Principles on Business and Human Rights distinguish between non-legal risk and legal risk.

Non-legal risk

• This refers to situations in which a company is perceived as “complicit” in the actions of another party: the company is seen as benefiting from human rights violations. This is the case, for example, when a company reduces its costs because of slavery practices in its supply chain. This sense of complicity is intimately linked to the ethics and morality of one’s actions. The main consequences are public opinion condemnation and disinvestment by investors, both of which lead to long-term and major reputational and financial damages.

Legal risk

• At national level, most legislation condemns complicity for defined crimes and consequently makes the perpetrator criminally liable. Civil actions can also be brought against a company for its contribution to a harm, even if this is often not defined in human rights terms.
• At the international level, criminal law jurisprudence defines the standard for aiding or abetting: “knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime”. This means that the duty bearer must be aware that it is facilitating a crime.

In summary, companies are exposed to legal condemnation for complicity at both national and international level, but also more generally from civil society.

Addressing duty bearer complicity in human rights violations is critical for ensuring accountability, upholding the rule of law, and promoting a culture of human rights respect and protection. It requires promoting transparency, accountability mechanisms, human rights education, and effective legal frameworks to deter and penalize complicit behavior.

How can duty bearers ensure to respect human rights and avoid risks of complicity?

5 Strategies for Respecting Human Rights and Avoiding Complicity

1. Education and Awareness: Duty bearers must prioritize education and awareness about human rights, ensuring that all individuals within their sphere of influence understand the fundamental principles and provisions. This includes comprehensive training programs, workshops, and seminars that delve into international human rights standards and domestic laws relevant to their roles. By fostering a deep understanding of human rights, duty bearers equip themselves and their teams to make informed decisions that respect and uphold these rights.
2. Establishment of Clear Policies and Procedures: Duty bearers should develop and implement unequivocal policies and procedures that explicitly outline their commitment to human rights. These policies should encapsulate principles of non-discrimination, equality, dignity, and respect for all individuals, regardless of their background. Furthermore, they should delineate mechanisms for reporting potential human rights violations, ensuring that employees feel safe and encouraged to raise concerns without fear of retaliation. Clarity in these policies helps prevent misunderstandings and sets a strong framework for ethical behavior. No better way to enhance existing policies and procedures using real world cases in role play and stress test exercises involving staff in position to understand, apply or benefit from these policies and procedures in their routine activities.
3. Regular Training and Capacity Building: Ongoing training and capacity building programs are vital components of a strategy to prevent complicity in human rights violations. Duty bearers should organize regular workshops that focus on real-life case studies, scenarios, and interactive discussions, enabling employees to recognize potential human rights risks in their operational contexts. These sessions should emphasize the duty bearers’ obligation to intervene and report violations promptly. By enhancing the skills and knowledge of their staff, duty bearers can cultivate a proactive approach to human rights protection.
4. Integration of Human Rights in Decision-Making Processes: Infusing human rights considerations into decision-making processes is critical. Duty bearers must assess the human rights implications of their actions, policies, and projects from the outset. This proactive approach helps identify and address any potential adverse effects on human rights before they occur. It ensures that human rights are not compromised in the pursuit of organizational goals or interests. Embedding this approach in decision-making instills a culture of human rights respect within the organization.
5. Transparency, Accountability, and Collaboration: Establishing a culture of transparency and accountability is key to preventing complicity in human rights violations. Duty bearers should create open channels of communication where employees can freely express concerns and report violations. Independent oversight mechanisms should be in place to hold individuals accountable for any complicit behavior. Additionally, duty bearers should actively collaborate with human rights organizations, civil society, and other stakeholders. This collaboration fosters mutual understanding, knowledge sharing, and collective efforts to protect and promote human rights effectively.

How can duty bearers can use effective leverage depiste limited influence?

5 Strategies for Using Effective Leverage to Improve Practices of Other Duty Bearers Despite Limited Influence

These measures collectively contribute to a work environment where human rights are respected and upheld, minimizing the risk of complicity in human rights violations. However, they may not suffice when companies have limited influence to shape better practices primarily under the control of other duty bearers. Absence of action can equal complicity still. Encouraging and leveraging other duty bearers to respect human rights is therefore a crucial complementary aspect of promoting a rights-based society. Duty bearers can employ various strategies to influence and inspire positive change in this regard. Here are five strategies in this regards:

1. Advocacy and Public Engagement: Duty bearers should engage in advocacy efforts to raise awareness about human rights and encourage other duty bearers to respect and uphold these rights. This can involve public campaigns, workshops, and seminars to educate not only their own constituents but also the broader public and other duty bearers about the importance of human rights. By showcasing the benefits of a rights-based approach and sharing success stories, duty bearers can inspire others to follow suit.
2. Partnerships and Collaborations: Collaboration among duty bearers is a potent tool for advancing human rights. Duty bearers can form partnerships with other governmental bodies, non-governmental organizations, civil society, and international entities to collectively work towards promoting and protecting human rights. Joint initiatives, resource-sharing, and the pooling of expertise can lead to more effective strategies and outcomes in upholding human rights.
3. Utilizing International and Regional Human Rights Mechanisms: Duty bearers can leverage international and regional human rights mechanisms to encourage compliance and respect for human rights. Engaging with these mechanisms, such as United Nations human rights bodies or regional courts, can help reinforce adherence to international human rights standards. Duty bearers can participate in periodic reviews, submit reports, and adopt recommendations, thereby showcasing their commitment to human rights and fostering accountability.
4. Establishment of Monitoring and Oversight Mechanisms: Duty bearers should establish independent and transparent monitoring mechanisms to assess compliance with human rights standards. These mechanisms can consist of ombudspersons, human rights commissions, or internal oversight bodies tasked with investigating and addressing human rights violations. Regular reporting and transparent dissemination of findings can exert pressure on other duty bearers to improve their human rights record.
5. Incentives and Recognition: Duty bearers can create incentives and recognition schemes to encourage compliance with human rights standards. Acknowledging and rewarding duty bearers who demonstrate exemplary adherence to human rights can inspire others to follow suit. This recognition can include awards, public commendations, or access to additional resources, showcasing the benefits of prioritizing human rights.

In summary, duty bearers can promote human rights by engaging in advocacy efforts, forming partnerships, utilizing international mechanisms, establishing oversight mechanisms, and creating incentives for compliance. By working collaboratively and consistently emphasizing the importance of human rights, duty bearers can inspire a culture of respect for human rights and drive positive change within their communities and beyond.

Conclusion

Companies, often in conjunction with other duty bearers, have a responsibility to respect human rights. In complex contexts, or in situations where the company is in one way or another a minority player, the absence of action can amount to tacit complicity. This article outlines a number of internal actions that every company can take. In addition, efforts to educate and influence other duty bearers to change their practices are essential. They often take place over the long term, and demonstrate the overall coherence of our approach to respecting human rights. In the event of a dispute and the identification of an actual violation, these actions of influence are proof of the goodwill shown by economic players in ensuring respect for human rights in their day-to-day operational activities.