We wish to predicate our submission on three key critical facts that seem to not have been deeply considered in the development of the zero draft vis-à-vis the responsibility of companies and obligations of states in situations of conflict. Firstly, increasingly, states have relinquished their monopoly on the legitimate use of force and as such, private military and security firms have gradually taken on functions that used to be the exclusive resort of state bodies. The involvement of such firms in some contemporary conflicts cannot be overlooked.
Secondly, business enterprises not involved in the security field but operating in difficult conflict environments, also exert influence on conflicts to the extent that the wealth they create or extract may attract interest from warring parties and turn a business operation into a military objective. Thirdly, and more apparent, the use of public security personnel to do the heavy lifting for corporations operating in conflict areas in terms of providing security to corporations, quelling civil unrests and intimidating and maiming human rights defenders and communities, has become the norm rather than the exception.
Based on the foregoing, we find Article 15.4 quite deficient in dealing with these realities as the call by this article for “special attention” is seemingly quite removed from the complexity of this issue as it does not denote mandatory pro-activeness on this highly sensitive matter. Additionally, the onus to undertake the so called “special attention” is not explicitly assigned to any party.
We propose the following thus:
- Explicit recognition of increased risks of negative impact of business activities for communities in conflict-affected areas;
- Express provisions that pay due regard to provisions of international humanitarian law and particularly, obligations of states in situations of armed conflict under international humanitarian law and international criminal law;
- Introducing provisions that address the complicity of states in situations of armed conflict, for example, deployment of public security for use by corporations that in turn fuels violence in conflict areas; and
- Succinctly addressing the risk of gender based and sexual violence in conflict-affected areas, which, as accurately captured in the commentary under UNGP 7, is particularly prevalent in situations of conflict.
Oral Statement on Conflict Affected Areas Made on 18th October, 2018