INFORMAL NONEXHAUSTIVE COMMENTS OF THE ICRC ON THE GUIDING

2 INFORMAL DOCUMENT NO  (42ND
3 INFORMAL DOCUMENT NO 14 (127TH WP29
9 INFORMAL DOCUMENT NO 3 STATUS OF

OPEN INFORMAL SESSION OF THE UNITED NATIONS INTERAGENCY
PRESIDENCY’S SUMMARY OF THE INFORMAL ENVIRONMENT COUNCIL ON
17 TEMA 2º LÓGICA FORMAL Y LÓGICA INFORMAL 1º

Informal Comments on the Guiding Principles (GP)

Informal, non-exhaustive Comments of the ICRC on the Guiding Principles for the Implementation of the UN 'Protect, Respect and Remedy' Framework (GP)

The following are informal, non-exhaustive comments provided by the ICRC with regard to the UNSG Special Representative's draft Report and Guiding Principles for the Implementation of the UN 'Protect, Respect and Remedy' framework, posted for public review and comment until 31 January 2011.

In trying to prevent the business corporations' involvement in / contribution to human rights abuses and / or international crimes the GP focus on three different questions:

What are the obligations of States with respect to the human rights impact of corporate business?
What are the responsibilities (society expectations) of business corporations with regard to their impact on the exercise of human rights?
What are the State obligations / corporate responsibilities with regard to ensuring effective remedy in case of adverse human rights impacts from business corporations?

The GP expressly recognize that the "risk of gross human rights abuses" is heightened in "conflict-affected areas", that is to say, in situations which presumably would amount to armed conflicts within the meaning of international humanitarian law (IHL). Further, the Report of the Special Representative states that the "Guiding Principles' normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses" (Report, § 13).

From the perspective of the ICRC as a neutral and independent humanitarian organization mandated, inter alia, to alleviate human suffering in situations of armed conflict and to work for the respect and better understanding of IHL, one of the principal concerns must be to ensure that the GP, when addressing situations of armed conflict, accurately reflect the letter and spirit of the existing rules and principles of IHL.

As far as the discussion of relevant international legal obligations is concerned, the GP focus exclusively on the legal obligations of States with regard to the conduct of corporations, but discuss neither the legal obligations of non-state belligerents (which are equally bound by IHL) nor the international criminal responsibility of individuals (i.e. the addressees of international criminal law). As the conduct of corporations is not, so far, regulated by IHL or penalized under ICL, it is not surprising that the GP and their accompanying Commentary end up using rather "soft", non-affirmative language when formulating both State obligations and non-legal corporate responsibilities.

For example, although the GP recognize that the "risk of gross human rights abuses" is heightened in "conflict-affected areas", they merely provide that States "should help ensure that business enterprises operating in [armed conflicts] do not commit or contribute to [human rights] abuses," including by "[a]s appropriate, reducing or withdrawing access to public support and services for a business enterprise that is involved in gross human rights abuse and fails to cooperate in addressing the situation".^¹ Similarly, where State policies, regulation and enforcement measures do not effectively address the heightened risk of businesses committing or contributing to international crimes in conflict-affected areas, the Commentary provides that the concerned States "should take appropriate steps to address such gaps. This may include exploring civil, administrative or criminal liability for businesses domiciled or operating in their territory and/or jurisdiction that commit or contribute to international crimes."

While this approach may be legally correct, it may inadvertently invite misperceptions or misinterpretations regarding the extent to which corporate conduct may otherwise be regulated, prohibited or even criminalized under existing international law. It must be emphasized that, even though corporate conduct with negative human rights impacts may not be regulated, prohibited or criminalized by international law specifically as conduct attributable to a business corporation, it may well be regulated or prohibited under existing IHL, for example, as conduct attributable to a belligerent party entertaining contractual relations with the corporation in question, or it may be criminalized under existing international criminal law as conduct attributable to individuals who may be acting on behalf of that corporation.

Therefore, although business corporations are not, strictly speaking, legal entities that are directly subject to IHL and international criminal law, it is important to recall that IHL does establish a general and unconditional legal obligation of States:

to "ensure respect" for IHL by all State or non-State actors operating within their sphere of influence;^²
to search for and prosecute or extradite persons alleged to have committed serious violations of IHL (war crimes)^³.

The ICRC is concerned that the language and formulations used in the present draft text of the GP and their accompanying Commentary do not appropriately reflect this legal context and may invite the erroneous conclusion that the existing international legal regime regulating, prohibiting or criminalizing certain conduct in situations of armed conflict is ambiguous, less developed or strict than it actually is.

In sum, based on this non-exhaustive, informal review of the draft GP, the ICRC encourages the Special Rapporteur to review the presentation and formulation of the current draft text of the GP and their accompanying Commentary with a view to avoiding any misunderstandings or misperceptions both as to the existing legal obligations of States with regard to the prevention, suppression and prosecution of IHL-violations, and as to the criminal responsibility of individuals for their involvement in international crimes.

DC/JUR/THEM/NME/28.01.2011

1 §10 of the Principles ("Supporting Business respect for Human Rights in Conflict-Affected Areas").

2 Art. 1 common to the 1949 Geneva Conventions.

3 Rule 158 of the ICRC's Customary Law Study considers the following rule to have attained customary nature in all armed conflicts: "States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects". As far as treaty law is concerned, see also the "grave breaches" provisions of the four Geneva Conventions and their First Additional Protocol (respectively: Arts 49; 50; 129; 146 GC I / II / III / IV; Art. 85 AP I).

2 INFORMAL TRANSLATION COMMENTS BY ARGENTINA ON DECISION IX3
20 NOVEMBER 2006 UN ECE GRPE INFORMAL WG NRMM
5 INFORMAL CONSULTATION ON “STRATEGIES FOR GENDER EQUALITY IS

Tags: comments of, non-exhaustive comments, informal, guiding, comments, nonexhaustive