Corporations’ complicity in human rights abuses
Mimin Dwi Hartono
According to the January-November 2012 reports of the National Commission on Human Rights (Komnas HAM), corporations were second in rank after the police as parties implicated in human rights abuses.
There were 1,009 complaints related to corporations, which involved issues of plantation, land, mining, the environment, labor and crime.
The increasing trend in corporations’ complicity in human rights abuses is neither new nor surprising.
In the period between September 2007 and September 2008, corporations came second (748 cases) after the police (1,106 cases) as the most prolific actors reported to the rights commission.
The high number of corporations complicit in rights abuses must be addressed and dealt with in a more systematic way. This is because according to international human rights law, there are no provisions that require corporations to respect human rights.
The mechanisms of accountability according to international human rights law are limited to the state as the duty bearer that has the obligation to respect, to protect and to fulfill human rights.
The obligation to respect means that the state should not intervene or take any action that could reduce, block or take away from the enjoyment of human rights.
The obligation to protect means that the state must take action to protect individuals and/or communities from the actions of third parties (e.g. corporations) that could disrupt or revoke the enjoyment of human rights.
Furthermore, the obligation to fulfill means that the state should take action to promote and advance the enjoyment of human rights progressively and gradually, which can be measured in a timely manner and with the maximum available resources.
Therefore, the complaints relating to corporations’ complicity in human rights abuses imply the failure of the state in carrying out its obligations to protect human rights. In a complaint filed with Komnas HAM, human rights abuses committed by corporations do not stand alone, but almost always involve the state apparatus.
For example, the Police Mobile Brigade’s (Brimob) involvement in land disputes between residents and plantation corporations, where in many cases the police back up the corporations instead of providing protection to local residents.
In cases of plantations, not just the police, but also local and national governments have failed to prevent human rights violations.
Expecting the state to deal with allegations of human rights abuses involving corporations is a serious challenge. Such abuses have been getting worst since the implementation of regional autonomy which gives great authority to regents and mayors to issue permits for plantation/forestry/mining operations beyond the control of the central government.
Many corporations, which have different names but are actually part of the same big company, have emerged in order to obtain as many permits as possible from regents or mayors.
The business community worldwide has actually initiated the Global Compact supported by the United Nations (UN), which contains the norms and principles of human rights as guidance for companies wherever they operate. Indonesia established the Global Compact Local Network in 2006, but its activities are still too few and mostly limited to charity.
However, considering that the Global Compact was inadequate to accommodate public demands, Prof. John Ruggie, UN Special Representative on Business and Human Rights, has completed a study on the UN Guiding Principles to Protect, Respect and Remedy.
The study was formally endorsed by the UN Human Rights Council in September 2011.
The UN’s Guiding Principles on Business and Human Rights is the first global standard produced by the UN through a lengthy process of consultation that involved thousands of civil society groups and companies around the world.
The Guiding Principles emphasize the linkage between business and human rights in order to prevent and deal with the impact of companies’ activities on the enjoyment of human rights.
The Guiding Principles contain, first, the state’s obligation to protect individuals and/or communities from human rights abuses by third parties, such as corporations, through policy, legislation, adjudication or other actions.
In the context of Indonesia, normatively, regulations and policies that govern the behavior of third parties, including corporations, are quite complete, such as legislation on the environment, labor, plantation, mining, forestry, etc.
However, the implementation and enforcement are very weak and inconsistent. As an example, in issuing plantation permits, corporations are given a set of obligations, but in reality many are not implemented due to the absence of a monitoring system or imposition of sanctions in cases of violation.
Second, the corporate responsibility to respect human rights, in which corporations are responsible for preventing misconduct or complicity in human rights abuses, through careful examination or due diligence to ensure that the corporation will not pose any harm.
The word used is “responsibility” instead of “obligation” because in human rights law, there is no obligation for corporations to respect human rights. The main obligations remain with the state.
Third, the effective access to remedies which are intended to ensure that victims will have access to remedies for human rights violations. Moreover, it is necessary to claim the state accountability in its obligation to protect human rights and corporations’ responsibility to respect human rights.
If there are human rights abuses, the state must ensure that victims have access to a quick and effective remedy through judicial, administrative, policy or other mechanisms.
Amid the pessimism of citizens about the accountability and impartiality of judicial institutions, the role of independent institutions such as Komnas Ham is essential in facilitating the restoration of the rights of victims.
The Guiding Principles that were developed by Ruggie require a strong state accountability system, which is not yet fully developed in Indonesia. The court decisions that punished cases of oil pollution due to mining by Chevron in Ecuador’s Amazon rainforest and British Petroleum’s oil refinery explosion in the United States are examples of international jurisprudence in which the state has shown an effective obligation to protect human rights.
In the Indonesian context, the role of civil society organizations, individuals and Komnas Ham is vital to promote, campaign for, educate about and advocate human rights so that the state has a strong legal mechanism and accountability in favor of the victims.
The strategic role of the individual as a consumer should be strengthened in selective and critical order to convince people not to use the products produced by corporations complicit in human rights abuses.
Corporations must develop a due-diligence system that consists of at least a written commitment to respect human rights, the assessment of impacts on human rights, integrating respect for human rights into all parts of the company’s activities and processes and developing performance indicators on the responsibility to respect human rights.
The writer is an investigator at the National Commission on Human Rights. The opinions expressed are personal.
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