Former Managing Director, Advisory Services, BSR
Former Director, BSR
December 10 marked the 63rd annual Human Rights Day, and this year it provided a capstone to several important events in the human rights field. The year began with the Arab Spring and closed with the Occupy Movement—both invoking human rights principles as a basis for their platforms. In between, the United Nations endorsed John Ruggie’s Guiding Principles for Business and Human Rights, and the U.S. Supreme Court agreed for the first time to consider corporate liability for human rights violations.
As we celebrate these developments on Human Rights Day, we should also reflect on the continuing challenges for business and human rights. Chief among these is the issue of “corporate complicity” in human rights violations. Companies are expected to avoid direct violations of human rights, but they are also expected to avoid complicity in violations committed by others.
But what does “complicity” mean in this context, and where is the line between legal and illegal activity? In this article, we unpack the meaning of corporate complicity from a legal perspective, as well as offer insights from the non-legal perspective in the court of public opinion. We also include examples of how companies and industries have avoided complicity in human rights violations, and end with four concrete actions companies can take to help mitigate the risk of complicity.
The Legal Perspective
Most human rights risks for multinational companies stem from instances of complicity rather than from the company’s direct impacts on human rights. For example, the right to be free from forced labor is more likely to be violated by a company’s suppliers than by the company itself. And the right to free expression may be infringed upon not by the company itself but by the way customers use the company’s product. Depending on the circumstances, companies could be held liable for complicity in these situations.
According to the UN Guiding Principles and other international legal documents, the definition of complicity is “knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime.” The key word is “knowingly,” meaning that a company is complicit in human rights violations if it “knows” it is providing “assistance” to an actor, and the “substantial effect” of the assistance results in a human rights violation. Each of these terms—“knowingly,” “assistance,” and “substantial effect”—is defined broadly under international law.
Unfortunately, national laws do not always align with the international definition. In the United States, the standard for complicity requires “intent,” meaning the company would have to purposefully intend to assist in the commission of a human rights violation to be held liable. The “intent” standard is problematic because it’s too high—almost no company would be found liable for complicity. Several U.S. judges, noting the overwhelming support for the international “knowledge” standard, have encouraged future courts to adopt that standard instead of “intent.” The U.S. Supreme Court has not yet decided the issue but could tip its hat when it rules on the issue of corporate liability next year.
The Court of Public Opinion
In the non-legal corporate responsibility world, complicity is not subject to a clear definition and is often judged under looser standards in the court of public opinion. Ruggie, the former UN special representative for business and human rights, has stated that a company’s mere presence in a country where human rights abuses occur is not likely to amount to complicity in the legal sense, nor is complicity likely when a company merely benefits from an abuse without taking any specific action to assist in the abuse. However, the public may nonetheless assign blame to and demand action from the company in these cases, and the company may suffer damage to its reputation as a result. Ruggie contends that companies seeking to avoid the perception of complicity by the public should strive to identify and address instances of possible complicity—even if they don’t meet the legal definition—through human rights due diligence assessments.
In this context, it’s important to remember that other actors such as suppliers and governments have human rights responsibilities as well, so the immediate responsibility lies with the party committing the violation. However, a company’s responsibility to respect human rights extends to its business relationships with suppliers, customers, and governments in operating countries. In conducting human rights impact assessments, the company should consider the degree to which it has leverage over the actions of others when determining what actions, if any, it can take to operate with respect for human rights. Again, it is important to remember that in the court of public opinion, associated reputational risk is a key factor in determining the right course of action.
In their human rights policies, many companies commit to “avoid complicity.” These companies manage complicity risks as they would other direct human rights impacts through their overall human rights management system (which assesses impacts, trains personnel, establishes grievance systems, and remedies problems) and specific operational policies (or codes of conduct).
Companies can use careful due diligence to avoid complicity by including suppliers and other business partners within the scope of human rights policies, assessments, and training programs.
There are several examples of companies that work to avoid complicity in practice:
- Companies in several industries have adopted supplier codes of conduct and follow up with monitoring and auditing to avoid being liable for complicity on labor and other issues with suppliers.
- Companies like Microsoft, Yahoo!, and Google have committed to the Global Network Initiative to help avoid complicity in potential human rights violations by governments. The initiative outlines specific policies and processes that require due process when companies receive demands from law-enforcement agencies for personal information, some of which could be illegitimate and impact human rights to privacy, security, and free expression.
- When GE was faced with potential complicity in human rights violations through the use of an ultrasound product by its customers in India to facilitate gender selection and female feticide, the company took several actions to engage customers in training, provide warning labels, and raise awareness among communities to avoid complicity.
- Extractives companies, in collaboration with governments and human rights groups, have developed the Voluntary Principles on Security and Human Rights to help avoid human rights violations by security providers through policies, assessments, training, and reporting.
Four Steps to Reduce the Risk of Complicity
Most situations of potential complicity share one characteristic: The human rights challenge is not one that the company can solve alone. By definition, complicity can best be avoided if the initial human rights abuse is avoided by the other actor. As the GE ultrasound example shows, there are often complex underlying issues, such as cultural norms and ineffective enforcement of laws, that perpetuate negative impacts.
To avoid charges of complicity, companies should consider the following key elements in a human rights framework:
- Due diligence: Conduct regular human rights impact assessments that include relationships with suppliers, customers, and others that could commit human rights abuses.
- Transparency: Commit to open communication about human rights dilemmas, the company’s responsibility, and its ability to address the dilemma.
- Collaboration: Partner with other businesses, stakeholders, governments, and others to increase leverage and amplify messages.
- Practicality: Identify ways to address the underlying cause or make meaningful progress toward a long-term solution.
These steps help companies know and show that they respect human rights in all their operations, and help them begin to address the underlying causes.
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