19
As a legal matter, most national jurisdictions prohibit complicity in the
commission of a crime, and a number allow for criminal liability of business
enterprises in such cases. Typically, civil actions can also be based on
an enterprise’s alleged contribution to a harm, although these may not
be framed in human rights terms. The weight of international criminal law
jurisprudence indicates that the relevant standard for aiding and abetting
is knowingly providing practical assistance or encouragement that has a
substantial effect on the commission of a crime.
Conducting appropriate human rights due diligence should help business
enterprises address the risk of legal claims against them by showing that
they took every reasonable step to avoid involvement with an alleged human
rights abuse. However, business enterprises conducting such due diligence
should not assume that, by itself, this will automatically and fully absolve
them from liability for causing or contributing to human rights abuses.
18. In order to gauge human rights risks, business enterprises should identify
and assess any actual or potential adverse human rights impacts with
which they may be involved either through their own activities or as a
result of their business relationships. This process should:
(a)
Draw on internal and/or independent external human rights
expertise;
(b) Involve meaningful consultation with potentially affected groups
and other relevant stakeholders, as appropriate to the size of the
business enterprise and the nature and context of the operation.
Commentary
The initial step in conducting human rights due diligence is to identify
and assess the nature of the actual and potential adverse human rights
impacts with which a business enterprise may be involved. The purpose
is to understand the specific impacts on specific people, given a specific
context of operations. Typically this includes assessing the human rights
context prior to a proposed business activity, where possible; identifying
who may be affected; cataloguing the relevant human rights standards and
issues; and projecting how the proposed activity and associated business
relationships could have adverse human rights impacts on those identified.
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