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Complicity means being implicated in a human rights abuse that another company, government, individual or other group is causing. The risk of complicity in a human rights abuse may be particularly high in areas with weak governance and/or where human rights abuse is widespread. However, the risk of complicity exists in every sector and every country.
The requirement to respect human rights, pursuant to Global Compact Principle 1 and the UN Guiding Principles on Business and Human Rights, includes avoiding complicity, which is another way, beyond their own direct business activities, that businesses risk interfering with the enjoyment of human rights. The risk of an allegation of complicity is reduced (though not eliminated) if a company has a systematic management approach to human rights, including due diligence processes that cover the entity’s business relationships. Such processes should identify and prevent or mitigate the human rights risks with which the company may be involved through links to its products, operations or services.
The commentary to Principle 17 of the UN Guiding Principles on Business and Human Rights notes that “most national jurisdictions prohibit complicity in the commission of a crime, and a number allow for criminal liability of business” as well as allowing civil actions based on a company’s contribution to a harm. In the international context, the same commentary notes that “the weight of international criminal law jurisprudence indicates that the relevant standard for aiding and abetting is knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime.”
However, allegations of complicity are not confined to situations in which a company could be held legally liable for its involvement in the human rights abuse committed by another. The media, civil society organizations, trade unions and others may allege complicity in a far broader range of circumstances, such as where a business may appear to benefit from another actor’s abuse of human rights, and may lobby the company to play an advocacy role. The better view is that the presence of a company in an area and payment of taxes where egregious and systematic human rights abuses are occurring, without more, is not enough to make the organization complicit in those abuses. However, some societal actors take a different view and may lobby business to play an advocacy role in such circumstances.
The business rationale for taking action to avoid complicity is the same as for Principle 1. In other words, not only is it the right thing to do – there is also a growing business case. Several factors combine to place human rights higher on business’ list of priorities.
Human rights issues have become increasingly important as the nature and scope of business has changed. Different actors have different roles to play, and it is important for business to be aware of the contemporary factors that have made human rights an organizational issue.
An effective human rights policy and conducting appropriate human rights due diligence will help companies address (though will not eliminate) the risk of being implicated in human rights violations, by knowing and showing that they took every reasonable step to avoid involvement.
