Companies operating in Belarus and Russia must avoid contributing to violations of international law

Sergey Bobok / AFP

Russia’s and Belarus’ aggression and the ongoing conflict in Ukraine create enormous legal, economic and reputational risks for businesses operating in Russia and Belarus, which could find themselves being linked to serious violations of international law. The situation requires that companies proceed with extreme diligence and, if needed, to withdraw or freeze some of their investments. The International Federation for Human Rights (FIDH) also urges governments to step up economic sanctions on strategic sectors.

Context

On 24 February 2022, Russia’s President, Vladimir Putin, announced the beginning of a “special military operation” in Ukraine, kicking off a large-scale armed attack on major Ukrainian cities, including the capital, Kyiv, Kharkiv, Kherson, Mariupol, and Kramatorsk. Some of the attacks have been launched from Belarusian territory, with participation of Belarusian armed forces.

The Office of the UN High Commissioner for Human Rights reported that between 24 February and 1 March, it had “recorded 752 civilian casualties in Ukraine: 227 killed and 525 injured”, mostly “caused by the use of explosive weapons with a wide impact area, including shelling from heavy artillery and multi-launch rocket systems, and air strikes” and that real figures were expected to be “considerably higher.” Rights groups also documented the use of cluster munitions by Russian forces. According to the UN High Commissioner for Refugees, a million people have fled the country in just a week and countless more are internally displaced. Strong calls condemning the Russian invasion were echoed by numerous international actors, including the UN Secretary-General António Guterres, 69 UN Special Procedure experts and the Commissioner for Human Rights of the Council of Europe. The UN General Assembly condemned Russia’s "aggression against Ukraine" and demanded that Moscow “unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders."

FIDH and its member organisation in Ukraine, the Center for Civil Liberties (CCL) have called the Russian invasion an act of aggression—a crime prohibited under international law. Both the attack and Russia’s recognition of the so-called Donetsk and Luhansk People’s Republics constitute violations of the UN Charter Article 2(4) prohibition on the threat and use of force against the territorial integrity of Ukraine. FIDH and CCL further recognized that an international armed conflict was underway in Ukraine, with parts of Ukrainian territory, including Crimea, already under Russian occupation.

The Prosecutor of the International Criminal Court (ICC), whose Office has been examining the situation in Ukraine since 2014, determined that there is “a reasonable basis to believe that both alleged war crimes and crimes against humanity were committed in Ukraine in past years.” Given the expansion of the conflict in recent days, the Prosecutor further stated that the investigation would “also encompass any new alleged crimes falling within [the ICC’s] jurisdiction…committed by any party to the conflict on any part of the territory of Ukraine.” [1]

Companies must implement enhanced due diligence processes and divest whenever needed

The legal, economic, and reputational risks for companies operating or investing in Russia and Belarus are huge. Risks are particularly salient for companies investing in or partnering with state-owned enterprises or entities tied to Vladimir Putin’s regime, which could find themselves aiding, abetting, or otherwise indirectly facilitating Russia’s violations of international law.

In conflict-affected and high-risk areas such as Russia and Belarus, companies must respect internationally recognized human rights, as well as the standards of international humanitarian law and international criminal law. Companies operating in these states must conduct a thorough, robust and enhanced due diligence process, in regard to both their operations and their whole supply chain, to avoid contributing to human rights or humanitarian law violations.

Conflict affected or high-risk settings are complex, and encompass a variety of actors, drivers, and motivations. Thus, it is critical for companies to have a thorough understanding of the conflict and to integrate conflict analysis into their risk and impact assessments. Businesses should also develop strong and effective measures to prevent and address potential and actual adverse human rights impacts, as well as mechanisms and procedures to provide or cooperate in providing remedy. Such enhanced due diligence should be based on consultation and engagement with external stakeholders, especially national and local experts, and with local communities.

Companies must also cease any activity or cut financial ties that could contribute directly or indirectly to ongoing crimes committed by the Russian and Belarusian authorities or cease any activity for which they cannot efficiently implement measures to prevent or address negative impacts. In this respect, firms providing arms or weapons-making materials, dual-use technologies or military equipment risk being directly complicit in ongoing violations. But Russia’s strong economic reliance on state-owned firms in sectors such as banking, energy, and aviation, as well as the deep political ties between selected business elites and Vladimir Putin, should also lead companies to reconsider their business with such entities if they do not want to find themselves financing Russia’s war efforts.

In this regard, FIDH welcomes the decision of many businesses to end their relations with entities such as Russian state-owned companies Rosneft or Gazprom by withdrawing from projects. FIDH also recalls that businesses that choose disengagement must do so responsibly, i.e., with an evaluation, mitigation and remediation of potential adverse impacts resulting from their disengagement, particularly of impacts on workers and local populations.

States must step up sanctions

States have responded to Russia’s and Belarus’ aggression with strong economic measures, which include closing airspace to Russian aircrafts, excluding banks from the SWIFT financial network, and restricting Russia’s ability to access its foreign currency reserves.

FIDH calls states to step up sanctions targeting the Russian economy, and echoes the Kyiv Declaration made by 40 Ukrainian civil society organisations and leaders that they target Russia’s oil and gas sectors to cut off the revenue Putin uses to fund his war machine. While oil and gas production could be allowed to proceed for humanitarian reasons, the revenues and taxes linked to such exploitation should be frozen into escrow accounts.

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