Towards Consolidating Synergies Between Business and Human Rights and Transitional Justice

By Hobeth Martínez CarrilloSabine Michalowski and Michael Cruz Rodríguez

Last October, the UN Working Group on Business and Human Rights launched its report ‘Business, human rights and conflict-affected regions: towards heightened action’. From a transitional justice perspective, the report is hugely important, not only for addressing the lack of attention paid to how businesses contribute to or are linked to human rights violations in conflict settings, but also for dedicating a whole section to reparation and transitional justice. Stressing the importance of engaging with transitional justice as part of business and human rights and considering synergies between the two fields is essential to improve the accountability of businesses and other economic actors for their role in conflict-related human rights violations, provide victims with reparation and prevent recurrence of these violations. Although the report makes a significant step in the right direction, a lot remains to be done to fully integrate lessons from transitional justice into business and human rights frameworks.

Transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. Unlike the field of business and human rights that focuses much of its attention on corporate actors, in transitional justice processes, victims occupy centre stage. This is so because transitional justice deals with the aftermath of massive violations of human rights where a substantial number of people suffered abuses. It addresses victims’ quest for justice, finding out the truth of what happened and why, and redresses the harm they suffered. Giving attention to victims is a moral duty to dignify them as part of a democratic society, a prerequisite to the kind of social reconciliation needed in societies torn apart by violence and, more substantially, a right and a correlative state obligation. As a consequence, victims must be at the forefront of any intervention in post-conflict societies, whether they aim to provide redress for so-called blood crimes or address more structural violations to transform the social contexts that were conducive to conflict.

In transitional justice contexts, businesses and States’ heightened due diligence to prevent human rights violations makes sense precisely because it would help to avoid the victimisation of civilian communities and contribute to achieving guarantees of non-recurrence, transitional justice’s forward-looking pillar. But where violations have already taken place, as is always the case in transitional justice contexts, a consequence of heightened due diligence must be to engage with transitional justice processes, guided by victims’ demands.

Additionally, current transitional justice theory and practice is moving towards a holistic model of transitional justice that is built on the four pillars of truth, justice/accountability, reparation and guarantees of non-recurrence, which operate side-by-side and complement one another to address as best as possible, central demands of victims and societies trying to overcome civil wars. We are pleased that the UN Working Group’s report adopted our suggestion to embrace the holistic approach to transitional justice  as part of the application of the UN Guiding Principles on Business and Human Rights by embedding the four pillars of transitional justice, all of which contribute to the reparation of victims, into the Guiding Principles’ remedy pillar. Nevertheless, we believe that there is still more room for businesses to meaningfully engage with transitional justice processes.

Ideally, all actors in societies should contribute to transitional justice mechanisms. However, the expectation is even greater for powerful economic actors who could have benefited from past contexts of violence and that can also find more business opportunities or get access to natural resources as a result of pacification. It is also important to bear in mind that post-conflict reconstruction and transitional justice processes often exist side-by-side and that businesses cannot forego their responsibility to engage with transitional justice processes through contributing to post-conflict reconstruction, but rather have an important role to play in both. While post conflict reconstruction is a complex process aiming at rebuilding a country’s social, economic and political institutions, transitional justice primarily addresses injustices committed during the conflict period and victims’ demands in that respect.

Finally, transitional justice practice has taught us that neither conflicts nor transitions can be easily confined within temporal limits. It is not only difficult to determine the precise moment when a conflict starts or finishes, but the end of a transition period is also often unclear. Armed confrontations might persist despite the formal end of a conflict by a ceasefire or a peace accord, and relapsing into conflict remains a common feature of countries that have endured a civil war. Successive waves of armed confrontations in the Colombian conflict might be a good example of such a ‘conflict trap’, as it has been coined, while legal cases open before Argentinian courts against the former military involved in crimes committed during the 1976-1983 dictatorship might also exemplify the long duration of transitional justice efforts.

What, exactly, this implies for business and human rights of course depends on the particular context, but a couple of insights are worth considering. On the one hand, businesses’heightened duty of due diligence persists despite the formal end of a conflict because confrontations, and therefore the risks of human rights abuses might continue. On the other hand, early engagement with transitional justice mechanisms might benefit businesses by preventing future social or legal demands for justice, truth or reparations that were unaddressed at early stages of the transition. The Apartheid Litigation in US courts is a good example here, as it shows that multinational businesses’ lack of-engagement with reparations as part of the South African transitional justice process led victims to seek other routes to achieve accountability and reparation.

Consolidating synergies between business and human rights and transitional justice, which until recently have been two separate fields of practice with little exchange, requires more conversations between practitioners working in both fields. Inspired by advances in business and human rights and the growing recognition of the role of business in human rights violations, transitional justice has been broadening its scope to include businesses in its remit, still facing many challenges in the process, as the Colombian example shows. At the same time, the willingness of business and human rights to engage with transitional justice is exemplified by the Working Group’s report. These are steps in the right direction but continued efforts to bring the two disciplines together are crucial in strengthening the efforts of both areas to improve business accountability.

About the authors:

Hobeth Martínez Carrillo is senior research officer at the University of Essex and Senior Atlantic Fellow for Social and Economic Equity (AFSEE), Sabine Michalowski is Professor of Law and Co-director of the Essex Transitional Justice Network (ETJN), University of Essex and Michael Cruz Rodríguez is senior research officer at the University of Essex. Michael holds a PhD in Law from the Universidad Nacional de Colombia.

This post was first published on the Business and Human Rights Journal Blog and is reproduced on our blog with permission and thanks. The original post can be accessed here.

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