The invasion of the Ukraine by Russia presents more than a critical challenge for public law and the continued viability of the post 1945 state system; the invasion also presents substantial challenges for companies whose production chains and other economic activities occur in, through, or with either state or in the zones of conflict (broadly defined). Especially important in this context is the risk of complicity for many companies in violations not just of domestic law (sanctions regimes etc.) but also of core human rights responsibilities.
These brief reflections consider very preliminarily, the responsibilities of business (whether undertaken by private or state entities) to respect human rights in the conduct of their economic activities under the framework of the UN Guiding Principles for Business and Human Rights (2011), and the OECD's Guidelines for Multinational Enterprises (Chp. IV--human rights). More specifically, the focus is on the risk of complicity in the human rights violations of others (principally states but also other actors (insurgents, agents, That, in turn, can be understood to involve three distinct areas of human rights risks: (1) conflict zone risks; (2) states that may be directly or indirectly involved in the commission of human rights wrongs or in support of states committing these wrongs; and (3) states, other organizations, and people who suffer human rights harms.
The bottom line: it is likely that any enterprise that engages in economic activity in and through Russia (the invading state) as well as those states that have supported or are in any way supporting the Russian effort must both conduct quite rigorous human rights due diligence to determine whether at any point in their global production chains their activity contributes directly or indirectly to the Russian invasion efforts (complicity) and then to make a determination respecting how to prevent, mitigate, or remedy the human rights harms caused by their complicity in facilitating Russian state (or private) human rights harms.
The forms of prevention, mitigation and remedial strategies may depend on the circumstances but may extend the entire length of global production chains and may in some cases require abandonment of an economic relationship and remediation of harm. In any case, depending on the circumstances , complicity that remains unresolved ought to open the enterprise and its officials to both civil and criminal liability.
Companies that may have contributed to Russian or insurgent tech or to the development of materials used in the invasion--from chemical weapons, to trucks and tires, to the clothing used to uniform personal may all face complicity responsibilities. Tech companies that provide the phones,software and virtual spaces through which military aggression may be advanced and other crimes facilitated may also face substantial risk. This is especially the case where the victim of aggression has put the company on notice (see, Ukraine asks Apple to stop product sales and block App Store access in Russia; see also here, and here). Companies that provide or facilitate the trade in wheat from let's say Russia to the People's Republic of China and thereby provide Russia with the financial capability for ongoing adverse human rights violence may also face significant exposure for complicity. These are consequences that may produce not just business risk and the operation of so-called soft law frameworks, but may also produce legal risk throughout the company production chain. NGOs,, states and other actors, as well as other representatives of peoples and governments adversely affected will likely begin quickly to interpose civil,criminal and soft law proceedings against companies on this basis. The framework of the UNGPs may well provide the companies basis for such action. States must also carefully assess their compliance with the strict duty to defend human rights and their own exposure; complicity related claims may not only be limited to private economic actors but extend to others. Bilateral investment and other treaty relationships may be the doorway through which these implications maybe undertaken.
How does this work?
Complicity appears only once in the UNGPs, in the Commentary to UNGP ¶17 (Human Rights Due Diligence).
Article 17 sets out the framework for human rights due diligence. That standard, in turn, is grounded on the core objectives of prevention, mitigation and remediation realized through a process of impacts assessment, action on findings, tracking responses, and communicating results.The scope of objectives and process is determined under a "cause or contribute" standard (¶17(a) tied to a causation standard ("directly linked to operations" standard). It is understood that these are contextually based assessments that may change over time and that thus may require a dynamic approach.
The Commentary to Principle 17 advances two principle points relating complicity to the core of human rights due diligence duties. The first is that questions of complicity are approached under a "contributes to, or is seen as contributing to" standard. Thus actual realization of the fruits of complicity is not the triggering factor but perception itself is seen as contributing to adverse human rights impacts. The second touches on the definition of complicity for purposes of the UNGP. The Commentary adopts a very broad definition of complicity. That broad definition is divided into two parts. The first includes non-legal complicity. The definition of the non-legal standard of complicity is built on a "perception" standard" "business enterprises may be perceived as being “complicit” in the acts of another party where, for example, they are seen to benefit from an abuse committed by that party" (¶17 Commentary; emphasis added)). Legal complicity is based loosely on an "aiding and abetting" standard (" knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime" Ibid.).
Nonetheless, complicity as a fundamental component of the corporate responsibility to respect human rights is also connected to the principle of prevention-mitigation-remediation in UNGP ¶ 13 (What responsibility to respect human rights requires of business).
Principle 13 elaborates the "cause or contributes" and the "directly linked" standards then embedded in Principle 17. Critical to the former standard is the understanding that causing or contributing occurs through their own activities RATHER THAN BY such activity. Critical for the elaboration of the later standard is that the direct link is to corporate operations, products and services but not to the human rights harm caused ("
directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts " UNGP ¶ 13). The Commentary to Principle 13 clarifies these points. First involvement in activities with adverse human rights impacts is not limited to corporate activity but also include those which occur "as a result of their business relationships with other parties" (UNGP ¶13 Commentary, with a cross reference to ¶19). "Activities" are broadly conceived to include actions and omissions. Business relationships (central to the directly linked standard) include "
relationships with business partners, entities in its value chain, and any other non-State or State entity directly linked to its business operations, products or services "(Ibid.).
It is important here to recall, as well, the debate about "spheres of influence" and complicity that were considered by the SRSG John Ruggie and treated in condensed form in his 2008 Report, Clarifying the Concepts of “Sphere of influence” and “Complicity” (A/HRC/8/16). The Report considers in detail the then emerging legal standards in domestic and international law, as well as the broader standard emerging in the social sphere and in non-binding international standards. Of particular interest may be the discussion around the complicity standards extracted from Principle 2 of the Global Compact, distinguishing between direct, beneficial, and silent complicity (Clarifying the Concepts , ¶58). The SRSG's summing up in ¶70 of the Report:
What constitutes complicity in both legal and non-legal terms is not uniform, nor is it static. Despite this messy reality, the evidence to date lends itself to several conclusions. First, knowingly providing a substantial contribution to human rights abuses could result in a company being held accountable in both legal and non-legal settings. Second, being seen to benefit from abuse may attract the attention of social actors even if it does not lead to legal liability. Third, and similarly, mere presence in contexts where abuses are taking place may attract attention from other social actors but is unlikely, by itself, to lead to legal liability. In short, both operating in contexts where abuses occur and the appearance of benefiting from such abuses should serve as red flags for companies to ensure that they exercise due diligence, adapted for the specific context of their operations.
To this point, then, one can understand the scope of the complicity standard as including activities that may arise directly from business relationships but that may manifest indirectly, and that includes conduct that may be perceived as aiding and abetting in the commission of acts with adverse human rights impacts. That is, complicity includes effects that may be attributed to business
relationships that may be perceived that provides practical assistance
or encouragement that has a substantial effect on the commission of a
crime or otherwise a substantial human rights wrong. The consequences of this "jittery" nature of complicity, of course, will produce different consequences within domestic and international law systems, in markets, and through soft law systems, and the private law systems of global production. At the same time it requires greater and more deeply embedded systems of diligence on the part of those great engines of global production whose access to great resources must be balanced against their responsibility to respect human rights. But the SRSG's fundamental point is consistent throughout: complicity ought to have its reckoning, and the complicit ought to own up to the breach of their responsibility to respect human rights.
Complicity is further contextualized in UNGP ¶ 19 (internalizing the prevention-mitigation principle in enterprise operations); and UNGP ¶ 22 (remediation); UNGP ¶ 23 (context);and UNCP ¶ 24 (prevent-mitigate-remedy and prioritization of addressing human rights impacts).
UNGP ¶ 19 adds substantial context to the cause or contribute standard in its elaboration of the prevention and mitigation objectives of human rights due diligence as the applied expression of the corporate responsibility to respect human rights.
The key relevant provisions here relate to the "effective integration" principle (responsibility for addressing impact assigned to the appropriate level and function; ¶ 19 (a)) and the "appropriate action" principle (as a function of placement in the chain of causation and extent of leverage in addressing impacts; ¶19(b)). Principle 19,then, addresses the question of what is to be done, after application of the Principle13stabadrdsto the operations of an enterprise through its implementation of Principle 17's human rights due diligence duty.
Principle 19's Commentary adds context to the "what is to be done" analysis required under ¶19. Three are of significance in applying that calculus. The first recognizes an "impossibility" standard": the responsibility of business respect for business recognized human rights to the extent possible where full compliance is impossible, subject to a further duty to demonstrate efforts, and thus also to demonstrate the causes for impossibility ("Where the domestic context renders it impossible to meet this responsibility fully, business enterprises are expected to respect the principles of internationally recognized human rights to the greatest extent possible in the circumstances, and to be able to demonstrate their efforts in this regard
" UNGP ¶19 Commentary). The second recognizes a "systemic compliance" standard grounded on assessment of legal liability under domestic and international law ("Business enterprises should treat this risk as a legal compliance issue, given the expanding web of potential corporate legal liability arising from extraterritorial civil claims, and from the incorporation of the provisions of the Rome Statute of the International Criminal Court" Ibid.). The third recognizes a "no exacerbation and consultation" standard (" draw on not only expertise and cross-functional consultation within the enterprise, but also to consult externally with credible, independent experts, including from Governments, civil society, national human rights institutions and relevant multi-stakeholder initiatives" Ibid.). Together, these suggest the need to maximize compliance, demonstrate impediments to compliance, mindful of legal risk (requiring sensitivity to all domestic law that may be applicable as well as international criminal law) balanced against a duty to avoid exacerbation of adverse human rights impacts supported by transparent consultation with key external actors. . These standard are fully applicable to the context of complicity related adverse impacts but made more complex because of the additional step of connecting the actions of others (especially states) to the economic contribution that may have indirectly but significantly facilitated a state's breach of its own duty to protect human rights. ,
UNGP ¶ 22 then speaks to remediation (and the elaboration of the "cause or contributed " and "directly linked" standards) as an addition to the applicable standards for prevention and standards under Principle 19).
The "cause or contribute" standard applies irrespective of the foreseeability of the adverse impact. While Principle 19 speaks to ex ante planning, Principle 22 focuses on responsibility after the harm has occurred or while it is occurring. The key insight for complicity is set out in the Commentary and relates to a common element of complicity--the situation where the enterprise causes or contributes by its business relationships and actions but does not control the consequences or impact itself. "Where adverse impacts have occurred that the business enterprise has not caused or contributed to, but which are directly linked to its operations, products or services by a business relationship, the responsibility to respect human rights does not require that the enterprise itself provide for remediation, though it may take a role in doing so." (UNGP¶22 Commentary).
UNGP ¶¶ 23 and 24 then adds the practical considerations of the application of the standards and expectations built into the human rights due diligence systems. These are particularly relevant in the context of complicity where the human rights harms are caused or directed by or for a state actor by the state, other states, or other actors who serve as state.
UNGP 23 provides the "balancing" standard for complying with an entity's responsibility to respect human rights. It must first seek to comply with both domestic law and international standard where ever they operate. In cases of conflict between the two they must seek ways to honor the principles but comply with domestic law. Where that honoring impulse becomes impossible or is compromised then it must assess the risk of causing or contributing to adverse human rights impacts as a legal compliance issue. The Commentary refines this balancing standard and its consequences especially for the residual remedial obligation that is never waived but may be postponed for a reckoning at an appropriate time and before an appropriate tribunal. With respect to compliance the Commentary makes clear that this is subject to the same standard as under Principle 19's impossibility standard. Legal compliance standards point to the possibility of civil actions anywhere throughout a production chain by those impacted by the complicity related harms or by states or the ICC. Lastly Principle 19's "no exacerbation" standard is also applied here.
UNGP 24 then suggests the way that assessment of response must be ordered, and sets forth the "no waivability" standard for remedial obligations irrespective of the application of any "impossibility" standard. In other words, though compliance may be impossible, and an assessment reasonably made that continued engagement in actions of complicity may be warranted by the application of the "no exacerbation" principle, any harm caused thereby will still be subject to the unwaivable responsibility to remediate--if not now then later.This principle is bound up in the requirement of seeking to prevent and mitigate the most severe harm first (an "irremediability first" standard). The Commentary provides " if prioritization is necessary business enterprises should begin with those human rights impacts that would be most severe, recognizing that a delayed response may affect remediability." (¶ 24 Commentary).
The application of these principles and their process and liability structures are further refined in the context of conflict zones (Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises; Business, human rights and conflict-affected regions:
towards heightened action ¶ 11 (2020); Corporate Social Responsibility in Weak Governance Zones (risk and complicity)). Application will depend on context. Andhere the processes and principles of the UNGP will apply differently in (1) conflict zone risks; (2) states that may be directly or indirectly
involved in the commission of human rights wrongs or in support of
states committing these wrongs; and (3) states, other organizations, and
people who suffer human rights harms. Lastly, The OECD Guidelines for Multinational Enterprises then add two things. First they effectively incorporate the UNGPs in Chapter IV of the Guidelines. And then by this incorporation open the availability of engagement through the National Contact Point Specific Instance process.
It is already clear that many enterprises across the world, but certainly those whose home states are OECD members ought to be assessing their complicity risks at this moment. Whatever the realities of economic activities before 22 February 2022 (or earlier depending on when the start of Russian aggression may be calculated), after that date business activity in many sectors now have a significant task to apply the principles and balancing responsibilities of the UNGP, and as well to begin to set aside resources to meet their remedial obligation to Ukraine and the Ukrainian people applied strictly through the law and the norms of the UNGP. More importantly, states that impede the processes for the effort to indicate rights, including by reducing access to and the effectiveness of the National Contact Point processes of the OECD Guidelines for Multinational Enterprises may themselves be understood to be complicit and in any case they may open themselves to consideration of their own failure to meet their duty to protect human rights.
The Text of the relevant provisions follow: