Rights as Usual

It is a pleasure to welcome Anna Triponel (@ATriponel) on Rights as Usual. Anna is a business and human rights advisor specialized in advising companies, their in-house legal departments, law firms and investors on what human rights mean for business on a day-to-day basis. She has lived and worked in many countries, including Kenya after the post-election violence, Libya in the post-Qadhadi era and Myanmar during the transition to semi-civilian government. On 20 November 2018, she spoke at the launch of the Business and Human Rights Practitioners’ Network (BHRPN). This blog post is Anna’s and is based on the presentation she gave that evening.

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A few weeks after Qadhafi was killed, I was one of a handful of passengers, and the only woman, on a flight into Tripoli. I had been asked by Nobel Peace Prize nominee PILPG to coordinate strategies with civil society for how human rights could be placed front and centre of the planned constitutional dialogue process. I was solemnly greeted by members of a militia group at the bottom of the airstair. This militia group proceeded to escort me to a checkpoint where I was handed over to another militia group, who then handed me over to a third militia group just as I entered my hotel. My belongings were subject to an in-depth search by several men with guns. As I was waiting, one of the men with a rifle slung over his back informed me that he was a sniper and that he wanted my full name so that we could become Facebook friends. Sitting in the comfort of my office in New York, would I have thought that being friends with a Libyan sniper was a good idea? Standing there, in this bullet-scarred city, with no functioning government in sight and this sniper representing the last obstacle between me and my hotel room, my Facebook etiquette quickly changed. I was Facebook friends with a sniper for over a year before the images posted were too gruesome and I bore the courage to unfriend this man, hoping I would never bump into him in the hotel lobby again.

Decisions that are obviously not a good idea when sitting in the safety of our offices may not seem like such a bad idea when surrounded by guns in a state vacuum. For businesses, just as for people, it is incredibly difficult to operate responsibly in a conflict or post-conflict setting. But make no mistake, this difficulty has never served as an extenuating factor for companies that have faced challenges to their business conduct: quite the contrary, companies who continue to operate in these environments are held to a higher standard, by virtue of how their choices and actions can further harm already-suffering civilians.

Companies’ experiences highlight that decisions and actions that take place in these difficult contexts will most likely be investigated, and prosecuted – even years later. Let’s take the example of Colombia where companies were caught for years between left-wing guerrillas and right-wing paramilitary groups.

• American banana company Chiquita admitted to paying close to $2 million protection money to a paramilitary group to enable it to continue operating its banana farms. The company has since been subject to numerous civil law suits, has paid a $25 million fine to the US Government, and – in a recent twist – 13 of its executives are now being prosecuted by the Colombian Prosecutor General’s Office (as discussed in a post on this blog).
• British oil and gas company BP chose to settle with farmers requesting £15 million compensation for the harassment and intimidation they suffered at the hands of the paramilitaries guarding BP’s Ocensa oil pipeline. More recently, BP has been sued by a Colombian trade union leader for failing to halt his kidnapping and torture by paramilitaries.
• American coal company Drummond has also undergone numerous lawsuits, with claims that the company hired Colombian paramilitaries to kill and torture trade union leaders and paid a paramilitary group to protect its mine operations. In another recent twist, the Colombian Prosecutor General’s Office announced it was reopening an investigation into Drummond’s activities during the conflict and has called upon company officials to testify.

In more recent conflicts, the judicial fall out for companies has started to unravel more rapidly. In the ongoing civil war of Syria, triggered by 2011 protests against Syrian leader Bashar al‐Assad, French cement company Lafarge decided to continue operating while the majority of its peers opted to withdraw their operations. Lafarge has now been placed under a formal criminal investigation in France for providing over $5 million to Syrian terrorist groups (including the Islamic State) and aiding and abetting crimes against humanity (as discussed in a post on this blog). It is also facing a lawsuit by 11 former employees for placing their lives in danger. French software company Qosmos is also under investigation in France for providing mass surveillance and interception capabilities to the Syrian regime which allegedly helped the regime track, torture, and execute its opponents. The French court has named Qosmos an ‘assisted witness’, which means that it could formally charge the company for the crime of complicity in acts of torture. The company has responded that it withdrew from Syria before the capabilities were usable, because of concerns of supporting the regime.

While there will never be an easy answer for companies operating in these challenging contexts, there is increasingly a spectrum of possible actions in between the ‘should I stay or should I go.’ All of these entail the careful consideration of a range of questions, as well as consideration of how leverage can best be built with relevant stakeholders. How could continuing to operate in this context harm people (e.g., local workers, expats, specific groups in the workforce, surrounding communities)? How could my decision to leave lead to harming people? How could my company’s presence and operations further enable, contribute to or entrench the conflict? If I choose to stay, what role might I feasibly play to help the country move from conflict to post-conflict and from post-conflict to peace, security and stability? Who else should I be seeking to combine forces with (e.g., other companies, international organisations, embassies, local/ international civil society groups)? Do I have a role to play in pushing for accountability and the creation of transitional justice mechanisms? Do I have a role to play in supporting the socio-economic reintegration of former combatants through employment?

Companies are not expected to take on the role of the United Nations, neither are they expected to become negotiators of peace agreements, campaign organisations or experts in disarmament, demobilization and reintegration. But they are expected to ask themselves tough questions to continually assess whether their efforts are effective in this challenging environment and how they can create new and innovative ways to reduce harm to people through their operations.

While the vast majority of the sensitive conversations companies are having – internally and with other actors – in conflict and post-conflict settings are not in the public domain, due to understandable sensitivities, some examples from challenging environments are.

• Consider the example of Kenya’s largest mobile operator Safaricom. Seeking to avoid the use of its network for sending mass text messages (a major contributing factor in the 2007-2008 post-election violence), Safaricom took an early stand in the run-up to the 2013 election to issue guidance limiting how messages with political content could be sent. Recognising the limitations of unilateral guidance, the company further worked with the regulatory body for the Kenyan communications sector to ensure that similar guidelines were issued on a country-wide basis for all mobile network operators.
• Apparel companies H&M and Tchibo decided not to source local cotton from the Omo Valley region in Ethiopia when local communities alleged discrimination and impacts on their livelihoods resulting from land displacement and inadequate compensation on the part of the government. In parallel to implementing this ban, these companies also engaged with relevant stakeholders, including the government, on what community consultation would look like moving forward to avoid future conflict in cotton-producing areas.
• The Swiss football governing body FIFA took a stand when the Chechnyan authorities jailed one of Russia’s most prominent human rights defender, Oyub Titiev. Although the jailing of Titiev may not have been linked to the Egyptian football team’s decision to train in Chechnya in the run up to the 2018 World Cup, FIFA decided to have a number of conversations on this point, which included the Secretary General taking a strong public position that all human rights defenders should be able perform their work freely without fear of reprisals (FIFA’s work in the area of human rights is discussed in a post on this blog).

Where companies are being called out for decisions taken in times of crisis, some have decided to take a forward-looking approach. Dutch brewing company Heineken had an OECD complaint lodged against it for firing workers at the height of the civil war in the Democratic Republic of Congo. The company resolved to sit down and listen to the complaints voiced by the workers, including their deep disappointment that the last bastion of stability that they felt they had (their employer) had let them down. This resulted in productive negotiations and a successful OECD outcome, both for the complainants and the company.

We see that the environments companies operate in are subject to rapid change. A country that may be viewed as post-conflict, may remain very fragile and/or rapidly back track into full blown conflict; a country that is perceived as stable may suddenly be faced with conflict in one region. Companies are expected to be prepared for these possibilities. They are expected to consider their impact and build their leverage with stakeholders before it is too late: as the burgeoning of civil and criminal law suits against companies in these contexts demonstrate, it is the right thing to do for both people and the business.