Caught in the Crossfire: What should companies do to protect workers in an armed conflict?

Armed conflict often forces companies to suspend their operations. But what happens to their workers?

Foreign companies operating in Libya had to face this question in the early days of the popular uprising against the Gaddafi regime. The problem has only been magnified as the conflict has escalated. Companies that don’t employ a large number of people – such as capital-intensive industries like oil exploration - had a more manageable problem; companies in mass-scale manufacturing, or construction, needing thousands of workers, had a major crisis at hand.

Companies dependent on sub-contractors were unclear where exactly responsibility lay. To make matters even more complicated, not all of the workers were Libyan nationals and many weren’t nationals of the countries where the companies are registered. And of course, many of these workers had dependents, some of them possibly Libyan nationals.

Given the complexity, it was inevitable that the corporate response was not consistent. It could not be: there isn’t one set of standard operating procedures that all companies follow in such situations.

Several companies did take prompt action to evacuate their employees. The oil company BP moved its own staff and made its leased plane available to the UK Government, which was not able to marshal resources immediately to bring back British nationals. The Korean conglomerate Daewoo sent its ships to Libyan ports and took on board hundreds of Thai workers who worked on Daewoo’s construction projects, and brought them back to Thailand. Other large companies, too, managed to get their expatriate employees out in the first weeks.

But all employees weren’t as lucky. In the early days of the conflict, press reports suggested that thousands of employees of smaller companies were stranded on the Tunisian border, keen to get to a safe place, but with no help in sight. Some worked directly for employers; others, for subcontractors of Libyan and other companies. Attention inevitably turned to companies, including multinationals. Some large foreign companies had to take on responsibility of relocation for employees of sub-contractors who were unable to make their own arrangements.

But what does the law say?

Conversations with senior executives of companies and international organisations that had to deal with the Libyan crisis suggest that if the companies depended solely on international law, it would not help much because differing views remain on how foreign nationals should be treated, and which standards apply, with some saying that treatment should conform to an international norm not defined to everyone’s satisfaction, while others insist the state should treat foreigners and their own nationals in the same way, under the principle of non-discrimination. In any case, the overriding principle of non-discrimination is one of the basic building blocks of human rights laws and should apply in all cases.

Ultimately in the case of Libya, the safety of a foreign national legally in Libya rests with Libya, and the embassy of the employee’s country. In other words, if a French company hired a Congolese citizen in Libya, the Democratic Republic of Congo (DRC) and Libya bear the obligation to protect the Congolese employee’s rights. This is not a satisfactory situation, because neither the DRC nor Libya is likely to offer much protection to the employee. The Libyan government is fighting a civil war; the DRC has its own conflict to worry about.

It is more nuanced when the company has to take local nationals out of the country. Under human rights law, individuals have the right to leave their country and to return to their country, and such free movement guarantees apply. Governments can place some restrictions on those lights (to prevent fugitives from leaving, for example), but governments can place restrictions only in limited, specified situations. The company should, in any case, consult, inform, and if necessary, negotiate (individually, or where necessary, collectively) with the local government, to take local nationals out of the country, when evacuation has become necessary. And even if the scope of what a company is required to do regarding the evacuation of its staff may seem unclear, whatever plans the company puts in place cannot discriminate between various expatriate nationalities.

You can see the problems: unable governments (ones without resources) on one hand and unwilling ones (where the government may refuse to offer safe passage to its own nationals who belong to an ethnic group fighting a civil war) can endanger the human rights of civilians. The “best practice” is for the company to do the “sensible thing.” But what is that? And who is to decide? And can such a decision – which can affect lives – be left in the hands of the manager on the ground? Or, the executives at headquarters?

Experience shows that while individual managers on the ground have taken heroic, exemplary decisions in the past, a framework is necessary for companies to act responsibly in such acute situations. Three cases of responsible decisions (among I’m sure many others) help make this point:

• When victims fleeing genocide turned up at the gate of Hotel des Mille Collines in Kigali, the hotel’s manager Paul Rusesabagina decided to offer them protection and opened his doors, in the incident now widely-known through the moving film, Hotel Rwanda

• When hundreds of people faced massacre in the Niger Delta, Chevron’s executives airlifted nearly 2,000 people to safety during that violent upsurge - an act for which the U.S. State Department honoured the company.

• When Arne Rinnan, the captain of a Norwegian ship, M.V. Tampa, came across a sinking ship in the high seas, he took on board 400 Afghan refugees and took them to the nearest port, in Australia, against Australian government’s wishes. Australia ultimately allowed the refugees to seek asylum, after initially refusing them clearance to disembark.

These are extraordinary actions, but companies will usually not know what is required of them, and what is expected of them, in similar situations. In a high-risk zone, where law and order has collapsed, how can a company get it right?

There are no easy answers. But there are a number of tools that can help.

The International Committee of the Red Cross (ICRC) has a fine publication, Business and International Humanitarian Law, which shows how companies get certain rights as civilian entities and have certain obligations to comply with the law during an armed conflict.

In an ideal situation, a company should immediately get in touch with a neutral agency, like the ICRC, and help facilitate the transfer of the civilians to the ICRC, to ensure they are not harmed. This means they have to inform all parties to the conflict that they have civilians within their premises, and who deserve protection.

The report says that the rules under international humanitarian law prohibit attacks against civilians and civilian property, which includes business enterprises not taking part in conflict. Companies whose activities are closely linked to an armed conflict are required to respect international humanitarian law, and may be in a position to play an important role to promote these standards among military authorities.

We at the Institute for Human Rights and Business are also seeking to contribute to corporate good practice in this area. Next week we will release our latest report - From Red to Green Flags: The Corporate Responsibility to Respect Human Rights in High-Risk Countries. The report, which was prepared with support from the Foreign Ministry of Switzerland, and will be officially launched at an event in the Swiss capital Bern on 3 May, draws on consultations with over a hundred experts, and provides guidance on the approach companies should take in conflict and other high-risk zones. It explores the enhanced due diligence necessary in high-risk areas, as part of the corporate responsibility to respect human rights.

It is time for companies to start sharing best practices and to create a framework consistent with international humanitarian and human rights laws, the Geneva Conventions, and the UN Protect-Respect-Remedy framework on business and human rights, to ensure that their due diligence takes into account their responsibilities in high-risk zones.

To do this, they will have to work with other companies, governments, civil society groups, legal experts, and international organisations like the United Nations and the ICRC, which have well-established protocols in place to handle emergencies. Companies should also establish links with and cooperate with the Office of the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) who play a major role in moving civilians out of conflict zones to safety.

At the risk of simplifying a highly complex situation, companies should do the following when operating in conflict related emergencies threatening the safety of local populations:

• Evacuate expatriates, because they have responsibility towards those employees that they have brought in;

• Assist local nationals, including bringing them to neutral zones, like camps for refugees or internally-displaced people;

• Inform – and stay in touch with – local embassies representing nations of which their employees are citizens; and,

• Negotiate with authorities for safe passage.

These important decisions should not be made arbitrarily, nor should managers on the ground be forced to make critical decisions without a human rights framework guiding them. Firm understanding of international law, and enhanced due diligence are essential; empowering managers is crucial; developing a corporate culture that responds to the moral impulse is vital. And international laws and norms have to catch up. The process needs to begin now.