Questions to help companies respect human rights in occupied territories

Transcription

1 Questions to help companies respect human rights in occupied territories

2 Russian soldiers marching on 5 March 2014 in Perevalne, Ukraine

3 Contents Introduction and summary guidance 2 Closing the guidance gap 2 Occupation and international law 3 Material risks of doing business in occupied territories 3 Crimea and the Occupied Palestinian Territories 4 Overview of guidance 5 The questions to ask 6 What do the Guiding Principles say about occupations? 8 What do the Guiding Principles say about acting on impacts? 9 Specific questions: Serious violations of international humanitarian law 10 Specific questions: Your business 14 Specific questions: Your workers 20 This work is supported by a grant from the Open Society Foundations. The EIRIS Foundation is a charity registered in England and Wales working in the area of responsible investment. The Foundation has over 30 years experience of providing free and objective information on ethical finance and corporate activity to other charities and the public. Its ultimate aim is to help create a financial and corporate system that will drive the transition to a more sustainable world. The EIRIS Foundation wishes to thank all the people who read and commented on this paper especially to Marya Farah, Shin Furuya, Heartland Initiative, Attorney Emily Schaeffer Omer-Man and Pat Zerega for their thoughtful insights. However, opinions expressed in this paper are those of the EIRIS Foundation. EIRIS Foundation 1

4 Introduction and summary guidance Introduction and summary guidance It is hard to exaggerate the significance of the adoption of the Universal Declaration of Human Rights (UDHR) in 1948 by the newly formed UN. It was the start of a process which codified human rights and established systems to protect human rights. The UDHR focuses on the obligations of states to protect individuals. But over the 70 years since its adoption, the obligation of other non-state actors, like businesses, has become clearer. As this paper focuses on what companies and their investors must do to respect human rights in occupied territories, it concentrates on two recent developments the UN Guidling Principles and OECD Guidelines. Investors increasingly expect companies to undertake human rights due diligence, as set out by the UN Guiding Principles on Business and Human Rights ( the Guiding Principles ), Responsible business conduct for institutional investors: Key considerations for due diligence under the OECD Guidelines for Multinational Enterprises ( the OECD Guidelines for investors ), and by national laws such as the UK Modern Slavery Act and the French Duty of Vigilance Law. It is also increasingly recognized that human rights due diligence is an important element of achieving the UN s Sustainable Development Goals. Some of the goals directly refer to one or more human rights. Achieving other Sustainable Development Goals (SDGs) without regard to human rights may undo that good work given the SDGs headline commitment to leave no one behind in the transformation process. Investors are very clear in their message to companies: Failure to identify, prevent and address adverse human rights impacts may lead to reputational, operational, financial and legal risk. Closing the guidance gap However, despite the emergence of frameworks such as the Guiding Principles as authoritative global reference points for businesses to navigate their human rights obligations, a significant gap remains in the guidance for companies when it comes to occupied territories. While the Guiding Principles (Principle 12) state that in situations of armed conflict, businesses should respect the standards of international humanitarian law, none of the widely-used global frameworks for human rights due diligence contain specific mention of the challenges of doing business in occupied lands, i.e. regions placed under the authority of a hostile army (see box Occupation and international law ). This paper aims to start closing that gap, by offering businesses additional guidance on how frameworks such as the Guiding Principles and OECD Guidelines for investors might apply in two of the world s highestprofile areas of occupation: Crimea and the Occupied Palestinian Territories. 2 EIRIS Foundation

5 Introduction and summary guidance OCCUPATION AND INTERNATIONAL LAW The International Committee of the Red Cross defines an occupied territory as one that is placed under the authority of a hostile army. International law (including human rights and international humanitarian law) applies to all cases of partial or total occupation, even if such occupation does not encounter armed resistance. Occupation ceases when the occupying forces evacuate the territory and no longer have effective control of the territory. Much of the legal landscape for dealing with occupations, particularly with respect to human rights, derives from the Geneva Conventions which set out the rules of armed conflict and seek to protect civilians who are not involved in hostilities (known as protected persons). At their core, the rules related to occupation try to protect the daily lives of civilians, as much as can be done in a situation of conflict. Israeli separation wall surrounding the Jewish settlement of Pisgat Ze ev on 9 April 2011, Occupied Palestinian Territories Material risks of doing business in occupied territories Occupied territories pose unique human rights challenges for companies to consider, in relation to their control by a hostile army, the underlying conflict and the related international laws devised to safeguard protected persons. For any business active in occupied territories there are legal and material business reasons to address these challenges. From a legal standpoint, it is widely understood that international human rights laws and international humanitarian law have implications for companies operating within an occupied territory. 1 Companies are expected to respect the human rights of all affected by its activities, even though this may be difficult in a situation of occupation. The frameworks set out in international humanitarian law are mainly focussed on the conduct of the occupying forces and the protection of civilians, rather than permitting or outlawing economic activity. In that context it should be noted that the explicit permissions to operate under international humanitarian law are quite narrow, primarily being activities directed to the benefit of the protected persons or occupied population, and things justified by military necessity. If a company is seen to be causing or contributing to, or directly linked with, violations of international humanitarian law or other human rights by an occupying force it could also face significant sanctions, litigation or divestment initiatives and put its wider reputation with stakeholders at risk. 1 Michael Lynk Special Rapporteur report October 2017 (page 8) refers to these two ICJ decisions: Legal Consequences of the Construction of a Wall, Advisory Opinion, paras ; and Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda). Also see: what-difference-between-ihl-and-human-rights-law. EIRIS Foundation 3

6 Introduction and summary guidance CRIMEA AND THE OCCUPIED PALESTINIAN TERRITORIES Every occupation has its own unique and complex social, economic and political situation, and the purpose of this paper is not to give an exhaustive account of the history of these two geographies. In the case of Crimea and the Occupied Palestinian Territories, both have been recognized by the United Nations as subject to occupation. UKRAINE SYRIA WEST BANK GAZA STRIP JORDAN CRIMEA RUSSIA EGYPT ISRAEL Crimea This refers to the peninsula stretching out from the south of Ukraine between the Black Sea and the Sea of Azov. In 2014 Russian-backed forces seized control of the Crimean Peninsula, and the territory (which has a Russian-speaking majority) subsequently voted to join the Russian Federation in a disputed referendum. According to a preliminary examination by the International Court of Justice in 2016, the information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation. As a result of this finding, international humanitarian law applies to the situation after March 18, In November 2016, the UN General Assembly approved a draft resolution on the human rights situation in Crimea, the first UN document to officially recognize the Russian Federation as a foreign power illegally occupying Crimea. 2 Occupied Palestinian Territories This refers to the territories captured by Israel in 1967 and affirmed as occupied Palestinian territory by numerous UN Security Council and General Assembly Resolutions and the International Court of Justice. For example, Security Council Resolution 242 which was adopted in November 1967, calls for the Israeli withdrawal from all occupied territories. The 2004 International Court of Justice advisory opinion also found that Israeli settlements in the West Bank were illegal under international law. 3 According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), approximately 60% of the West Bank is under exclusive Israeli control for security, planning and construction purposes. 4 Applicability to other territories In response to earlier versions of this paper, a question was raised on whether this proposed approach can be applied to other territories such as South Ossetia, Abkhazia, Western Sahara or Northern Cyprus. All these cases are unique and complicated and this paper only investigates Crimea and the Occupied Palestinian Territories. This paper does not set out to analyse the applicability of the due diligence questions to each of these territories. However, the due diligence questions were derived from universal principles with a view to making them widely applicable. Wherever there is an occupation, military control over territory that is part of another sovereign state, or if self-determination and sovereignty over natural resources has not yet been achieved in a particular situation, some or all of these questions will indeed be relevant to a productive due diligence process for companies. 2 Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine), 3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, 9 July 2004, case-related/131/ adv en.pdf EIRIS Foundation

7 Introduction and summary guidance Overview of guidance As previously mentioned, the two instruments which serve as reference points for corporate due diligence on human rights are the Guiding Principles and the OECD Guidelines for investors. The Guiding Principles were developed by the Special Representative of the Secretary-General, John Ruggie, and were endorsed by the UN Human Rights Council in June They are a set of 31 guidelines which provide a basis for businesses to navigate the Protect, Respect and Remedy framework for addressing human rights connected to business activity. The Principles put the onus on businesses to actively identify the risk of adverse human rights impacts and then to act to prevent, mitigate, or remediate situations in which the business causes, contributes to, or is directly linked with such adverse human rights impacts. According to the Guiding Principles, States are required to ensure that businesses adhere to its guidelines. However, occupations provide a particularly difficult political climate from which to hold businesses accountable for human rights abuses, especially when the State occupying the territory may itself have perpetrated an abuse. The Guiding Principles identify three levels of possible impact: to cause harm, to contribute to harm or to be directly linked to harm; and are clear about the steps companies should take in each case (see box Guiding Principles: How companies can assess the actions they need to take on human rights ). The OECD Guidelines for investors builds upon the same approach. The OECD identified the financial sector as a specific subgroup of multinational enterprises which needed direct guidance on how to practically apply responsible business conduct in its sector. Its core premise is that investors have a responsibility to use their leverage with the companies in which they invest to seek the prevention, mitigation or remedy of adverse human rights impacts, by encouraging and expecting those enterprises to undertake the due diligence process set out in the Guiding Principles. An important point in the Guiding Principles is, The more complex the situation and its implications for human rights, the stronger is the case for the enterprise to draw on independent expert advice in deciding how to respond. Companies and investors are also encouraged to seek the expertise of human rights organizations such as Human Rights Watch, Amnesty International, SHIFT, The Danish Institute for Human Rights, and the Office of the High Commissioner for Human Rights. The Guiding Principles states (Principle 12) that businesses should respect the standards of international humanitarian law, but does not give specific advice on occupations. They do, however, give advice on conflict affected areas more generally. Additionally, the Interpretive Guidance to the Guiding Principles deals directly with international crimes, which include torture and transferring the civilian population of the occupying power into the occupied territory (see box What do the Guiding Principles say about occupations? ). In summary the relevant advice is: a. Where a company causes or contributes to an adverse human rights impact it should stop doing so and should seek to ensure the victims receive remedy; b. If local laws or practices drive adverse human rights impacts a company should first seek to uphold international principles, and may consider leaving if international crimes are involved; c. External advice from experts in business and human rights is likely to be necessary where the breaches are serious or the situation complex; d. Companies should seek to use, and, where it is insufficient, to increase leverage with entities involved in adverse human rights impacts where there is a business relationship; e. If they cannot influence entities they are linked to who are breaching human rights they may need to consider terminating those relationships; f. Leaving the territory or terminating relationships may have negative human rights consequences which must be fully considered in any such decision; g. In any case, there is an obligation to make ongoing efforts to mitigate the human rights-related impact of the actions of those entities with whom a business is linked. EIRIS Foundation 5

8 Introduction and summary guidance The questions to ask As mentioned above, each occupation is a complex situation and devising a thorough due diligence outline which fits every occupation is nearly impossible. However, we have drawn together some specific questions that can help to identify the additional challenges relating to occupation within each situation. We should emphasize that this guidance is in addition to rather than replacing normal human rights due diligence, with its emphasis on such things as clear statements on human rights, clear management responsibility, the creation of grievance mechanisms and monitoring relationships with security forces. Other areas beyond these are just as relevant in the context of occupation, but are well covered elsewhere and are outside the scope of the present publication. It is important to stress that each of these questions need to be considered independently. Managing any actual or potential impacts under one heading does not remove the obligation to address others. So, for example, a protected population may benefit from employment opportunities but this does not mean that the employer concerned can ignore other impacts, for example relating to land rights or population transfer. As a starting point in this guidance, we propose that businesses with operations in occupied territories should be able to answer the following questions: 1 General questions 1.1 Does your business have a human rights policy? If so, does it specifically address respect for international humanitarian law? 1.2 Does your business already operate a specific human rights due diligence policy? If so, have you identified occupied territories as a risk? 1.3 What independent advice have you drawn upon in considering the human rights risks in your operations in occupied territories? 1.4 Have you identified and assessed the requirements and impacts of all laws, regulations and guidelines applicable to operations in the territory that arise from its present status? Including any from: a. your country of domicile; b. the authorities in the territory itself (the occupier); c. any third states in which you have business relationships who may be seeking to act upon their international obligations in relation to the occupation; d. international laws and treaties applicable to occupied territories (as well as in conflict-affected areas more generally), e.g. Rome Statutes, Geneva Conventions, International Covenant on Civil and Political Rights, etc.; e. any sanctions, trade or other designations that might impact business in the territory? (see the Business in Occupied Lands website). 1.5 Have you previously considered ceasing your business operations in the occupied territory? If so, what factors did you consider and what are your reasons for remaining? 6 EIRIS Foundation

9 Introduction and summary guidance 2 Specific questions: Serious violations of international humanitarian law Killing/torture: Could the services that you provide the occupying forces be used to cause, contribute to or be linked with torture, ill-treatment or unlawful killing? 2.2 Transferring populations: Do you assist the occupying force in moving protected populations out of the occupied land and moving its own population into the occupied land and maintaining, developing or expanding the presence of its own population? Related to this, are you involved with the destruction of private property or assisting the occupying force in the transfer of the local population inside or out of the occupied territory for any reason? 2.3 Transferring prisoners: Do you in any way help the authorities to move prisoners from the occupied territory over internationally recognized borders to the occupying state? 3 Specific questions: Your business 3.1 Services in the territory: Does your business provide goods or services to people in an occupied territory, and are you able to overcome any discriminatory requirements imposed by the occupying forces? 3.2 Land ownership and property: Do you own or lease land or property in an occupied territory? If so, how did you establish whether others may have had their ownership rights infringed upon in relation to this property? 3.3 Water use & infrastructure: Does your business use water resources provided by, or in service of, the occupying power? If so, does this affect the right to water of the protected population? 3.4 Other natural resources: Does your business use local natural resources? If so, are those resources used for the benefit of the protected population? 5 EIRIS Foundation 7

10 Introduction and summary guidance 4 Specific questions: Your workers 4.1 Discrimination: Do you consider the ethnicity of potential employees when hiring, and do all employees, regardless of ethnicity and religious beliefs receive an equal level of wages and benefits? And are you able to overcome any discriminatory requirements imposed by the occupying forces? 4.2 Freedom of Movement: Are your workers exposed to risks specific to occupied territories, including permitting and security issues? 4.3 Privacy and the right to hold and express opinions: Are you required to provide the armed forces information on your employees, other than basic personal details? Are they free to hold and express their opinions, including in relation to the occupation, as well as the freedom to associate and establish collective bargaining agreements? These questions provide a basis to guide the risk identification phase of the due diligence process, rather than seeking to prescribe action plans for each adverse human rights impact identified. Proposing action plans that can prevent, mitigate or remedy adverse impacts under occupation outside the context of a specific case would be even more difficult than the task attempted here and emerges as a central challenge for a business operating under occupation. During the development of these questions and consultation with interested parties, we have discussed a number of examples of actions that might be taken by companies, including: capacity building; work on security issues; proposing or participating in a sovereign wealth fund for the future of the territory; or cooperation on human rights initiatives in relation to the territory. But from our discussions and the evidence of our research on individual companies in Crimea and Palestine, it is clear that significant challenges remain for the companies involved, their investors and other interested parties before one could safely claim that a template exists for the necessary action plans to prevent, mitigate or remedy each potential adverse human rights impact in these complex situations. WHAT DO THE GUIDING PRINCIPLES SAY ABOUT OCCUPATIONS? The Guiding Principles do not deal with the challenges of occupation as a specific topic, but they do refer to conflict situations more generally. For instance, Principle 7 sets out ways that home states may need to act to prevent companies from becoming involved with gross abuses of human rights and Principle 23 sets out the need to abide by international principles to the greatest extent possible when there are conflicting local requirements and to demonstrate efforts in this regard. Principle 23 also calls upon companies to treat the risk of being complicit in gross human rights abuses as a legal compliance issue and refers to the incorporation of provisions of the Rome Statute of the International Criminal Court in some jurisdictions and to the potential individual liability of company directors, officers and employees, in the case of gross human rights abuses. Continued... 8 EIRIS Foundation

11 Introduction and summary guidance Continued from page 8 The Interpretative Guide, published a year after the Guiding Principles, expands upon the challenges of conflicting requirements between local laws and international obligations (in Q 83): In the rare situations where local law or other requirements put an enterprise at risk of being involved in gross abuses of human rights such as international crimes, it should carefully consider whether and how it can continue to operate with integrity in such circumstances, while also being aware of the human rights impact that could result from terminating its activities. International crimes refer to genocide, war crimes, crimes against humanity, and the crime of aggression. Nowhere is it said that simply by operating in an occupied territory an enterprise commits an international crime, but the definition of war crimes in the Rome Statute of the International Criminal Court includes torture and the transfer of the civilian population of the occupier into the territory under occupation, amongst other things, which may apply. The same section of the guidance encourages companies to look for ways to uphold international obligations by seeking clarification from the local authorities about any apparently conflicting local requirements and even to challenge them. In the case of both Crimea and Palestine, the respective occupying powers do not consider themselves to be an occupier, for a number of reasons which vary in the two cases. The Interpretive Guidance also suggests companies engage expert and other stakeholders where a way to uphold international principles cannot easily be identified. WHAT DO THE GUIDING PRINCIPLES SAY ABOUT ACTING ON IMPACTS? One of the key concepts in the Guiding Principles is the relationship between a company and a particular human rights impact. Once the relationship is determined, the Guiding Principles set out actions a company needs to take to address such impacts. There are three different levels of impact: to cause harm, to contribute to harm or to be directly linked to harm. When harm is caused or contributed to by the company, the Guiding Principles are clear: The company should cease causing or contributing to harm and should remedy past impacts. In cases where a business is not causing or contributing to harm it may still have business links (which can include buying or selling goods or services, leasing, renting or other contracts or payments) with another person or entity who is causing or contributing to harm. In such cases Guiding Principle 19 sets out guidance on taking appropriate action: The more complex the situation and its implications for human rights, the stronger is the case for the enterprise to draw on independent expert advice in deciding how to respond. If the business has leverage to prevent or mitigate the adverse impact, it should exercise it. And if it lacks leverage there may be ways for the enterprise to increase it. There are situations in which the enterprise lacks the leverage to prevent or mitigate adverse impacts and is unable to increase its leverage. Here, the enterprise should consider ending the relationship, taking into account credible assessments of potential adverse human rights impacts of doing so.... the more severe the abuse, the more quickly the enterprise will need to see change before it takes a decision on whether it should end the relationship.... In any case, for as long as the abuse continues and the enterprise remains in the relationship, it should be able to demonstrate its own ongoing efforts to mitigate the impact. EIRIS Foundation 9

12 Serious violations of international humanitarian law Specific questions Serious violations of international humanitarian law Q2.1 Killing/Torture Overarching question: Could the services that you provide the occupying forces be used to cause, contribute to or be linked with torture, ill-treatment or unlawful killing? Objective To help companies ensure they are not in contravention of international humanitarian laws and consider the related issues of complicity with war crimes. Supporting Guidance The right to life and the right not to be tortured or ill-treated are absolute and cannot be limited or restricted in any way. Various international conventions enshrine these human rights. Within Crimea and Palestine, the right to life is at particular risk due to the weakness of the occupying powers respect for human rights in general. Forced disappearances and arbitrary arrest and detention, among other egregious offences have been committed by the occupying power in Crimea, for example, particularly in relation to the Muslim ethnic Tatar population. Companies need to be particularly aware of potential complicity in any impacts to the rights to life and not to be tortured, especially within occupied territories where the military carries out enforcement activities on the civilian population. Relevant Information The right to life, and right not to be tortured or ill-treated, are enshrined in the International Covenant on Civil and Political Rights (ICCPR), Convention against Torture (CAT) and in the Fourth Geneva Convention. Article 32 of the latter states the following: [it] is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents. 10 EIRIS Foundation

13 Serious violations of international humanitarian law Q2.2 Transferring populations Overarching question: Do you assist the occupying force in moving protected populations out of the occupied land and moving its own population into the occupied land and maintaining, developing or expanding the presence of its own population? Related to this, are you involved with the destruction of private property or assisting the occupying force in the transfer of the local population inside or out of the occupied territory for any reason? Objective To help companies understand the human rights risks related to the illegal movement of populations and ensure they are not in contravention of international humanitarian laws which prohibit population transfer. To help companies understand the potential for complicity with war crimes. Supporting Guidance The transference of populations is a clear breach of international humanitarian law and a war crime and companies seen to be causing or contributing to this harm, or directly linked to such action, face a range of legal, operational and reputational risks. Assistance to an occupying force in the movement of population can be broadly interpreted. It is not restricted to, say, transportation. It could also include the supply of building materials, heavy machinery or other services for the construction of houses and other buildings, and the provision of loans and financing, through real estate sales and more. Moreover, the destruction of personal or private property is considered a grave breach of the 4th Geneva Convention. In the Occupied Palestinian Territories, this relates to Israeli settlements (i.e. Israeli civilian communities inhabited by Israeli citizens, almost exclusively of Jewish ethnicity, built predominantly on lands within the Palestinian territories). Israeli settlements are illegal under international humanitarian law. Confiscation of land to build or expand settlements is also prohibited. Similarly in Crimea, the creation or maintenance of facilities for new Russian immigrants in Crimea, could be causing, contributing to, or be directly linked with a breach of international law. If a business is substantially contributing to the establishment, expansion, or maintenance of illegal settlements or other population movements then it needs to consider whether the company itself, or any key individual who made or implemented the relevant decisions could be held to be aiding and abetting a war crime. EIRIS Foundation 11

14 Serious violations of international humanitarian law Relevant Information Article 49 of the Fourth Geneva Convention prohibits Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not. Additionally, it states that The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. According to the International Committee of the Red Cross this means that international humanitarian law prohibits the establishment of settlements, as these are a form of population transfer into occupied territory. Any measure designed to expand or consolidate settlements is also illegal. Confiscation of land to build or expand settlements is similarly prohibited. 6 Settlements are considered a war crime under the Rome Statute (Article 8 (8)): The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Article 25 of the Rome Statute provides that all individuals are subject to criminal liability if they jointly commit, solicit, induce, aid, abet, otherwise assist, or in any other way contribute to the commission of an international crime including the war crime of transferring civilians into occupied territory under article 8(2)(b)(viii). The destruction of private property is prohibited as stated in Article 53 of the fourth GC: Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operation. Q2.3 Transferring prisoners Overarching question: Do you in any way help the authorities to move prisoners from the occupied territory over internationally recognized borders to the occupying state? Objective To help companies understand the human rights risks related to the illegal movement of prisoners across international borders. 6 ICRC 12 EIRIS Foundation

15 Serious violations of international humanitarian law Supporting Guidance Transferring prisoners across international borders includes the transport of persons, providing tailored transport vehicles and other services. Cases of the transfer of prisoners across international borders have been documented in both Crimea and Palestine by independent organizations. 7 Relevant Information Article 42 of Fourth Geneva Convention states: The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. Article 76 of the Fourth Geneva Convention states: Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. 7 Israel and Palestine Events of 2017, Human Rights Watch, 2017, Situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine), OHCHR, September 2017, Countries/UA/Crimea2014_2017_EN.pdf. EIRIS Foundation 13

16 Your business Specific questions Your business Q3.1 Services in the territory Overarching question: Does your business provide goods or services to people in an occupied territory, and are you able to overcome any discriminatory requirements imposed by the occupying forces? Objective To help companies understand the human rights risks related to discrimination in the provision of a broad range of services connected to an occupation. Supporting Guidance A business providing services to people living under occupation or those assisting the occupation may face the risk of discriminating in the provision of goods or services. Even though it may not be a specific or deliberate policy by a company, access to services in an occupied region may become limited to certain groups, ethnicities and/or religions and the resulting consequence of this can be discrimination. This remains true even if the issue arises only because a company is seeking to comply with the occupying forces requirements. In the Occupied Palestinian Territories this is particularly applicable to the provision of services to Israeli settlements. For example, this may result in discrimination in favor of specific ID holders, or of people who can pass a road block or even of people with a particular look, language skill or accent. A September 2017 report by the United Nations Office of the High Commissioner on Human Rights details incidents which include tacit discrimination of Crimean residents by employers for failing to renounce Ukrainian citizenship in favor of Russian Federation citizenship. Additionally, residents of Crimea who did not take Russian Federation citizenship are not afforded equal rights under the law, including the ability to own agricultural land, vote and be elected, register a religious community, apply to hold a public meeting, hold positions in the public administration and re-register their private vehicle on the peninsula. 8 In Crimea, Crimean Tatars, an indigenous peoples of Ukraine, have faced numerous abuses since the occupation of Crimea, including disappearances, forced psychiatric assessments and torture, among other situations. In 2016, the Mejlis, the executive representative body of the Crimean Tatars, was labelled by the Russian Federation as an extremist organization and subsequently banned. 8 Source UN OHCHR Report, citation: Article 3 of the Russian Federation Law On circulation of agricultural land (24 July 2002). 14 EIRIS Foundation

17 Your business Relevant Information Non-Discrimination is a cornerstone of the International Covenant on Civil and Political Rights (Article 2), the International Convention on the Elimination of All Forms of Racial Discrimination, and Article 13 of the Fourth Geneva Convention which prohibits any adverse distinction based, in particular, on race, nationality, religion or political opinion of civilians in conflicts. Q3.2 Land ownership and property Overarching question: Do you own or lease land or property in an occupied territory? If so, how did you establish whether others may have had their ownership rights infringed upon in relation to this property? Objective To help companies understand the human rights risks related to property in an area under occupation. Supporting Guidance Corporations should be sensitive to the risk of buying or leasing property in an occupied territory where the occupying government has nationalized and re-sold property, including entire businesses. 9 The corporation buying the property from the occupying government should do their due diligence to ensure that buying or leasing property or businesses in occupied territories are above board in order to avoid infringing the right of others to own property. Deprivation of personal and corporate property has occurred in both Crimea and Palestine. For instance, newly installed Crimean authorities commandeered a variety of state- and privately-owned properties on the peninsula post-occupation. Corporations previously operating in Crimea found their assets inaccessible, with little or often no compensation. Various lawsuits against the Russian Federation have fallen flat, and a single company has claimed U.S. $5 billion in damages resulting from losing its assets on the Crimean peninsula Neil MacFarquhar, In Crimea, Russian Land Grab Feeds Cries of Carpetbaggers!, New York Times, 30 September Ukraine s Naftogaz Seeks Billions From Russia Over Crimea Asset Grab, Forbes, 21 September EIRIS Foundation 15

18 Your business Following the occupation in Crimea, native businesses were required to re-incorporate as domiciled in the Russian Federation. In 2015, the Russian Federation named Crimea as a Free Economic Zone for 25 years, benefits of which include tax incentives and zoning relaxation, with the intention of drawing new business to the region. A number of properties and businesses, both military and non-military in nature, were seized by the Russian Federation following the occupation of Crimea. These businesses and properties have been reincorporated as Russian Federation state entities, new private ventures as well as listed for sale. Land ownership and land acquisition in the Occupied Palestinian Territories is complicated and convoluted. Through different legal procedures, the Civil Administration (CA) selectively allows the establishment of new settlements. For example, it cites an Ottoman law in which land that has not been cultivated in three years reverts back to the State. With this law, the CA has repossessed land from Palestinian farmers. Additionally, land in the Occupied Palestinian Territories is rarely purchased; rather, property rights are acquired through a short- or long-term lease. Land rights may be violated without changing the title of the land; in other words, land does not need to be bought, sold or leased in order to violate land rights. Simply by doing business in the territory, land rights may be violated. Technically, these leasing arrangements are legal under Israeli military law, but as mentioned before, construction and expansion of Israeli settlements is illegal under international law. This is an example of where the local law of the occupying party can conflict with the views of other states or international legal bodies. 11 Relevant Information Article 55 of the 4th Hague Convention (Convention respecting the Laws and Customs of War on Land) makes occupied public property subject to the laws of usufruct (the right to the use and enjoyment of the property of another, without changing the character of the property): The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied territory. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct. The confiscation of private property (other than properties which can be used for military operation) is also illegal as prescribed by the same Hague Convention (Article 46): Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated. The Fourth Geneva Convention, Article 53 states: any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations. According to Israeli non-profit Peace Now, 99.8% of state lands allocated in the West Bank were given to Israelis. 12 For a thorough summary of the Israeli legal process which enables Israeli settlements to be established, refer to this summary from Israeli non-profit B Tselem: 11 See the box on page 8 & 9 on the Guiding Principles guidance for dealing with such conflicting requirements EIRIS Foundation

19 Your business Q3.3 Water use & infrastructure Overarching question: Does your business use water resources provided by, or in service of, the occupying power? If so does this affect the rights to water of the protected population? Objective To help companies identify risks relating to water use and water infrastructure. This includes the human rights risk of being party to denying protected persons in occupied territories their rightful access to water. Supporting Guidance This may include water or water infrastructure, including pumps, wells and pipes at the physical location of its operations. In Crimea, water rights are particularly complex as a majority (82%) of Crimea s fresh water comes from the Dnieper River by way of the North Crimean Canal. In May 2014, Ukrainian authorities shut off the flow of water to the North Crimean Canal as an attempt at retribution for the annexation. While drinking water was reportedly unaffected by this action, agriculture, a major industry in Crimea, has been significantly impacted in this case not by the occupying power (i.e. Russian Federation) but rather the other party to the conflict (i.e. Ukraine). In the Occupied Palestinian Territories, water is highly contested. Palestinians are restricted from well-digging and in water consumption. Israeli settlements are given preferential access to water in the West Bank. Additionally, water and sewage treatment plants that serve Israeli settlements are frequently built in locations that disproportionately affect Palestinian neighborhoods and farmers downstream. Evidence of water contamination and pollution due to raw sewage from sewage treatment plants has plagued Palestinian civilians and farmers, leading to health issues for local residents. Relevant Information Article 54 (2) of the Additional Protocol (Protocol I, June 1977) to the Geneva Conventions states that It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as... drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive. EIRIS Foundation 17

20 Your business In July 2010, the UN General Assembly formally recognized the right to water and sanitation. The General Assembly resolution (A/RES/64/292) calls on States and international organizations to provide funding to ensure this right is upheld in all countries, and particularly in developing nations. In September 2010, the UN Human Rights Council passed a resolution (A/HRC/RES/15/9) affirming that the rights to water and sanitation are part of existing international law and that States must uphold these rights, as well as provide resources for the achievement of these rights. 13 The right to transboundary water resources derives from the right to adequate standard of living (Article 11, International Covenant on Economic, Social and Cultural Rights). See General Comments No. 15 (2002) on the right to water, paragraph 3. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in Article. 14 (2) (h) calls on states to ensure that women enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply as well as in the Convention on the Rights of the Child. Q3.4 Natural Resources Overarching question: Does your business use local natural resources? If so, are those resources used for the benefit of the protected population? Objective To help companies manage risks relating to natural resources such as minerals, fossil fuels and renewable resources. This includes the human rights risk of being party to denying protected persons in occupied territories their rightful access to such natural resources. Supporting Guidance International law is clear that the natural resources of occupied territories belong to the local population. According to the common interpretation of the laws of usufruct (the right to the use and enjoyment of the property of another, without changing the character of the property), this permits an occupying power and therefore the businesses operating under it to use the natural resources of the occupied territory only for the benefit of the protected population or if justified by military necessity EIRIS Foundation

21 Your business Prior to the annexation of Crimea, Ukraine was working to decrease its dependence on gas supplied by the Russian Federation. Ukraine s strategy was to focus on its own gas reserves in the Black Sea surrounding the Crimean Peninsula. 14 However, following the annexation, the Russian Federation took control of Chernomorneftegaz CJSC via local authorities. Renamed Chernomorneftegaz SUE, the Crimea-based company was previously part of the Ukrainian National Joint Stock Company Naftogaz. As of October 2015, Chernomorneftegaz was developing nine fields in the Black and Azov seas and near the Crimean Peninsula. Gazprom PJSC, a state-owned Russian Federation company, has reportedly been involved in the operation of Chernomorneftegaz SUE, but these reports have not been confirmed. 15 The West Bank has a number of low mountains, from which a variety of rocks and minerals are extracted. Israeli authorities have repeatedly shut down and refused to issue permits to Palestinian-owned and operated quarries in the West Bank, while allowing foreign and Israeli companies to mine in and around Israeli settlements. 16 Relevant Information Articles 1 of the International Covenant on Civil and Political Rights (IPCCR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) codify that the way the resources are used is a part of the right to the self-determination of peoples. According to Human Rights Watch, Article 55 of the Hague Regulations of 1907 makes occupied property subject to the laws of usufruct. The generally accepted interpretation of these rules permits an occupying power to appropriate the resources of the occupied territory only for the benefit of the protected population or if justified by military necessity. 17 Article 33 of the Fourth Geneva Convention states that pillage is prohibited with respect to protected persons. By definition in Article 4, protected persons are Persons who, in the case of a conflict or occupation, find themselves in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Additionally, section (2) (e)(v) of the Rome Statute states that Pillaging a town or place, even when taken by assault, is a serious violation of the laws and customs applicable in armed conflicts not of an international character. 14 The energy dimensions of Russia s annexation of Crimea, NATO Magazine, Ukraine-energy-independence-gas-dependence-on-Russia/EN/index.htm. 15 Chernomoreneftegaz SUE, Business in Occupied Lands database, 16 Israel: Quarry Shutdown Harms Palestinians, Human Rights Watch, 26 April 2016, Occupation, Inc., Human Rights Watch, 19 January 2016, how-settlement-businesses-contribute-israels-violations-palestinian. 17 Occupation, Inc.: How Settlement Businesses Contribute to Israel s Violations of Palestinian Rights, Human Rights Watch, 19 January 2016, EIRIS Foundation 19