Business and Peacebuilding

[*]

by
Carolina Olarte-Bácares, Dean, Associate Professor, Law Faculty
Pontificia Universidad Javeriana
c.olarte@javeriana.edu.co

Laura Bernal-Bermúdez, Assistant Professor, Law Faculty
Pontificia Universidad Javeriana
laurabernal@javeriana.edu.co

Marco Velásquez Ruiz, Adjunct Professor, Law Faculty
Pontificia Universidad Javeriana
velasquez.m@javeriana.edu.co

Jose Fernando Gómez Rojas, Adjunct Professor, Law Faculty
Pontificia Universidad Javeriana
jfgomez@javeriana.edu.co

  • Reparations
  • Accountability

Overview

Although there are different definitions, peacebuilding broadly refers to those activities undertaken to avoid the recurrence of violence, strengthen national capacities for conflict resolution, and lay the foundations for sustainable peace and development.[1] Although private actors can be involved in the termination of conflict, they are more likely to make significant contributions in taking actions to avoid recurrence of violence and laying the foundations for sustainable peace and development.

Academics and business representatives have recently turned their attention to the impact of business-led peacebuilding projects in territories affected by violence, poverty, and inequality.[2] Like Colombia, many countries around the world seek to avoid the recurrence of violence after peace agreements are achieved. Those responsible for public policy at the national and international level focus, among other issues, on economic development to avoid the recurrence of violence and to ensure sustainable peace in post-conflict situations.[3] A number of academic works also consider the use of transitional justice mechanisms to hold economic actors accountable for corporate complicity in armed conflict and human rights violations.[4]

This teaching note addresses corporate involvement in peacebuilding, drawing lessons from the experience of Colombia.[5] Three key issues are 1) Why business should participate in peacebuilding; 2) How business can participate in peacebuilding; and 3) What are the potential impacts of business participation in peacebuilding.

Why Should Businesses Participate in Peacebuilding?

A first question that interests the field is, why should businesses participate in peacebuilding. We suggest that there are two different responses to this question. First, because of the “business case for human rights.” In this way, it is a matter of featuring peacebuilding as a good business venture, or part of a corporate sustainability strategy. This includes economic and tax incentives that governments create to motivate businesses to operate in zones affected by armed conflicts.

For example, since 2016, through a law issued by the Congress,[6] Colombia created tax incentives to “close the gap of socio-economic inequality” in 344 municipalities of the country, located in the most affected areas of the country.[7] Through projects that seek to support socio-economic development, employment and grass roots organizations in peasant, indigenous and afro-Colombian communities, the law created two mechanisms to promote the participation of businesses in policies designed to build peace: i) operation in the most affected areas by the armed conflict in exchange for tax advantages and ii) what was called “public works in exchange for taxes”.

The first mechanism establishes a special income tax rate for companies that are created and have their operations in ZOMAC areas, as long as they keep a minimum investment and generate employment.[8] According to the national government, in May 2018, 407 new companies had been created.[9]

The second mechanism was first used in Perú and it consists of “public works in exchange for taxes.” In Colombia, according to Law 1819 of 2020 (and the norms that have regulated or modified Decree 1147 of 2020), legal persons can pay up to 50% of their income tax through investment projects in ZOMAC areas. These projects can improve or build infrastructure, public services (water, sanitation, energy, education, health), projects for climate change adaptation and risk management, communications, amongst others.[10] With this end, companies can enter into agreements with public entities, in exchange of which companies receive negotiable titles (“titles for the renovation of the territory”) to pay their income tax. This is conditioned to the actual implementation of the project that they committed to build. Not all or any public work classifies for this scheme. The national government, through its Agency for the Renovation of the Territory (ART in Spanish), will have a list of possible initiatives – financially and technically feasible – that make up a “project bank” of works that can be undertaken in the ZOMAC areas.

To date, there is not enough information about the impact of these two mechanisms regarding peace building or the well-being of communities. However, there is evidence to suggest that the strategic impact of these works in ZOMAC areas has been limited (FIP, 2019: 8). The information available about “public works in exchange for taxes” has revealed that its success depends more on involving communities in the implementation of works and generating citizenship monitoring processes (FIP, 2020). The location of the municipalities and the security conditions has made it difficult to keep up with the timelines to carry out the works. This risks the “business case” that the law is meant to promote in Colombia.

The second response to this question is that economic actors should participate in peace-building because transitional justice mechanisms can and have held businesses to account for their role in past atrocities. In this way, businesses can have a legal or moral obligation to participate in peacebuilding through reparation schemes, truth-telling, memory and guarantees of non-recurrence.

As will be illustrated bellow, Colombia has developed a transitional justice project -structured around the Integral System of Justice, Truth, Reparation, and Non-recurrence (SIVJRNR)- in which economic actors count with the means to appear before a number of institutions whose mandate is related to the integral and coordinated satisfaction of the rights of the victims. On the one hand, the Special Jurisdiction for Peace (JEP) allows the voluntary appearance of private persons to contribute to the prosecution and sanctioning of the crimes committed on the occasion of the conflict. On the other hand, the Truth Commission has established social dialogue instances where private actor may interact with different sectors of Colombian society, including the victims, in order to discuss peaceful coexistence and non-repetition alternatives.   

How Can Businesses Participate in Peacebuilding?

Below, we consider two different scenarios for business participation in peacebuilding: 1) in reparation efforts, where economic actors can participate in measures that include a restorative component, like symbolic reparation (with no necessary attribution or acceptance of accountability); 2) as a form of accountability, contributing to the rights of victims to truth, justice and integral reparation (judicial and non-judicial); and 3) contributing as a social actor in post-conflict local contexts, for example as a key actor in disarmament, demobilization, and reintegration (DDR) or contributing to “pacification through development.”

Reparations

In the current state of the transitional process that is underway in Colombia, some business actors have sought to contribute to national reconciliation by participating in actions to reconstruct historical memory. This includes itinerant truth museums of what occurred in their areas of operation (e.g., Ecopetrol), or supporting events to commemorate victimizing events that took place in the context of their economic activity (e.g., Glencore, regarding the massacre that occurred in the municipality of Becerril, Cesar). While these actions did not constitute an act of assuming responsibility for the violence, they can be considered part of the dynamic of symbolic reparation.[11] There have, nonetheless, been cases where businesses have accepted their responsibility in past human rights violations and produced reparations for victims. This is the case of Volkswagen in Brazil, where the company accepted its responsibility for the violation of the rights of its workers during the dictatorship, committing to individual reparations through compensate victims and their families, as well as collective reparations for workers and funding further investigations into the role of businesses in the abuses of the dictatorship.

Accountability

In the preparatory work of the UN Guiding Principles, the Special Representative on the issue of human rights and transnational corporations, John Ruggie, pointed to the fact that business enterprises are more likely to be involved in grave human rights violations in contexts of armed conflict.[12] Businesses from different sectors have been accused of participating in atrocities connected to armed conflict, including so-called “blood diamonds” fueling violent conflict in Sierra Leone, forced displacement of ethnic communities in Myanmar, forced displacement and land grabs in Colombia, homicides in Perú, as well as slave labor during the Holocaust.[13] In countries transitioning from conflict to peace, academics and practitioners have turned their attention to the role of economic actors in the violence of the conflict, and accountability efforts to guarantee the victims’ right to truth, justice, reparation and guarantees of non-repetition.

Traditional transitional justice mechanisms (trials and truth commissions) focus on state actors and armed actors participating in armed conflicts, but they have also included economic actors. This was true in Nuremberg, with the industrialists’ cases and other business enterprises that used slave labor during in Nazi Germany, as well as civil and criminal trials in Africa, Latin America and the Middle East and North Africa.[14] More than half of the truth commission reports that are available to the public mention corporate complicity with armed conflict and dictatorships.[15] Through these mechanisms, conflicts have been understood as multi-actor, broadening the scope of accountability to those actors who financed, determined or benefitted from the violence.   

In Colombia, for example, the role of the Special Jurisdiction for Peace and the Truth Commission in the accountability of economic actors has been subject of debate. Some consider that transitional justice mechanisms should only focus on armed actors that participated in the violence of the conflict. Others, however, hold that in order to guarantee the rights of victims, the mandate of these mechanisms needs to include non-armed actors that benefited from the conflict. As a result of this debate, new paths of accountability have emerged. Economic actors can voluntarily come before the Special Jurisdiction for Peace, to secure sentence reductions[16]. On the other hand, the Truth Commission has a mandate that allows it to include economic actors in its work on truth telling, peaceful coexistence, and non-repetition. 

What Are the Potential Impacts of Business Involvement in Peacebuilding?

Development programs tend to increasingly involve leaders of the business community to support local peace and development.[17] In Colombia, for example, the idea of pacifying through development is not new. It is an idea that has accompanied peacebuilding efforts since the 1950s, whenever commissions and committees have reflected on the causes of the conflict and the steps that should be taken to overcome them.[18]

Business involvement can have a positive effect as Miklian and Medina[19] found in the case of the coffee sector in Colombia. But they can also have a negative effect. Peacebuilding efforts that rely on businesses can have unwanted consequences by reinforcing cycles of violence. Their operation can cause episodes of violence or they can reinforce existing power structures that feed the conflict.  For example, business consortiums between companies and the government in Myanmar, have led to ethnic cleansing to secure access to natural resources that are found in the territories of ethnic communities. Companies in the Democratic Republic of Congo pay illegal armed groups in order to operate, contributing to fueling the conflict and not building peace.[20] However, businesses can also contribute to build peace by tackling those factors that produce the conflict. For example, helping support development efforts that come from below, connecting communities to the national and international economy and contributing to reconciliation.[21]

Another way that businesses can participate in post-conflict settings is by contributing to DDR processes. Businesses can support the transition processes of ex combatants to civil life, providing capacity building programs and including them in their workforce. For example, in Colombia, in February 2017, more than 650 companies reported employing ex-combatants.[22]

Lastly, a way in which businesses can participate in peacebuilding is through development programs that seek to include local voices. In the case of Colombia, as a result of the 2016 Peace Agreement with the FARC, the government created the Development Programs with a Territorial Focus (PDET), prioritizing 170 municipalities.[23] The PDET areas respond to an exercise to prioritize territories based on four criteria: i) poverty levels; ii) impact of the conflict; iii) institutional weakness; and iv) illicit crops and illicit economies. These development plans are built through eight pillars related to property, economic reactivation, agribusiness, food security, water and sanitation, reconciliation, education, and health. Businesses can contribute as co-supporters of initiatives around these pillars. For example, through actions to support transport, commerce, fair prices or supporting the substitution of illicit crops by agriculture crops, by including these products in their supply chain.

Teaching Approaches

The business and human rights field addresses the nature, impacts and remedy mechanisms for human rights violations (actual or potential) connected to business operations. The role of business in peacebuilding can be included as one topic in business and human rights courses or curricula. Dimensions of the topic, for example, can be addressed when teaching corporate complicity, access to remedy, or sector-specific modules, such as cases from the extractive or agricultural sectors.

Approaches for teaching BHR can have a highly practical content, including reflecting and measuring impact, and training on decision-making.  

Case studies work well, helping students to understand the day-to-day dimension of the interaction between business operations and human rights. Students can also be prompted to apply concepts and norms to business experience. Students can encounter cases of success and failure of business involvement in peacebuilding initiatives. And through those cases, students can explore the theoretical and empirical puzzles that emerge from peacebuilding initiatives that involve business enterprises.

Role playing exercises are also useful to explore the difficulties that different actors face when they have to design, regulate or implement public policies that seek to promote business participation in peacebuilding initiatives.

Learning objectives for teaching business and peacebuilding include:

  • Identifying and contextualizing the points of contact between the business and human rights and the peacebuilding agenda.
  • Studying and analyzing business strategies to manage conflict and promote peace.
  • Analyzing and discussing the determinant factors that produce business involvement in the mitigation of conflict and peacebuilding.
  • Exploring the available paths to hold business actors accountable for their complicity in armed conflict.
  • Problematizing the participation of economic actors in peacebuilding public policy. 

Key Questions

General

  • What are key features of post-conflict societies?
  • What human rights violations take place in situations of armed conflict? Who are the violators? Who are the victims?
  • How can business enterprises contribute to, or be connected to, situations of armed conflict?
  • What is the role of economic actors in the human rights violations that occur in the context of armed conflicts?  
  • What is the role of transitional justice mechanisms to hold economic actors accountable? What mechanisms are available? 
  • What type of measures have been implemented by transitional justice mechanisms to promote business accountability? How effective have those measures been? What is the impact on these mechanisms on the promotion of victims’ rights?
  • What are key features of “peacebuilding”?
  • What models are there of business participation in peacebuilding? What are the possible risks of those models?
  • What interaction is there between accountability efforts and strategies that use development and investments as paths to peacebuilding?

For business students

  • What are the main drivers for a business to become involved in peacebuilding?
  • What measures, beyond employment opportunities, could determine whether a business takes part in a peacebuilding process?
  • How can contributing to peacebuilding be perceived as “good business”?
  • How can questions about the business impact on peace building be included in human rights due diligence?                                                                   
  • What criteria should a company use to decide whether to participate in peacebuilding efforts?
  • How can peacebuilding relate to a company’s sustainability strategy?
  • What are the advantages (or disadvantages) of business support for initiatives to generate employment or self-employment for victims of the armed conflict?
  • What are the advantages (or disadvantages) of business support for initiatives to generate employment or self-employment of ex-combatants as part of a disarmament, demobilization, and reintegration (DDR) process?
  • How can a company be involved in the provision of public goods and services without replacing the state´s role as guarantor of those goods and services?
  • Is it desirable to invest in countries with peace processes underway? What are the obstacles?
  • How would a corporate risk matrix work in countries with peacebuilding processes?

For law students

  • What are the components of complicity under international law?
  • Can non-state non-judicial mechanisms be a path to accountability for corporate complicity with human rights violations committed during armed conflict?
  • Can/should a company participate in symbolic reparation initiatives without accepting responsibility for human rights violations in armed conflict?
  • What are the legal grounds for the participation of economic actors in peacebuilding initiatives?
  • Should the proposed draft Treaty on Business and Human Rights include transitional justice as part of judicial and non-judicial remedy mechanisms? What would an effective mechanism look like?
  • Would it be possible to include company’s peacebuilding activities as part of their due diligence in human rights?
  • Regarding peacebuilding initiatives, how does the business and human rights field relate to traditional corporate social accountability frameworks?
  • For peacebuilding, would you prioritize forward looking initiatives (panoramic view) or those that look into the past (rearview mirror)?
  • How does participation in peacebuilding initiatives relate to the “corporate responsibility to respect human rights” under the UN Guiding Principles on Business and Human Rights?

For policy students

  • How can businesses participate in peacebuilding initiatives without sacrificing accountability for complicity in armed conflict and human rights violations?
  • How can businesses contribute to the provision of public goods and services without replacing the state in its role as guarantor of economic, social, cultural and environmental rights?
  • How can societies pacify through development by articulating community-led initiatives with initiatives led by the business sector?
  • How can policies incentivize business participation in different peacebuilding scenarios, beyond tax incentives?
  • How should peacebuilding policies at the local level recognize both the positive and negative impacts of certain economic activities?
  • What are the most adequate tools to guarantee citizen participation in the design and implementation of company-led peacebuilding processes?
  • How can we promote citizen monitoring of the expenditure of public resources in company-led peacebuilding projects?
  • What lessons can be drawn from the experience of business participation in peacebuilding in Colombia?
  • Which peacebuilding initiatives involving the private sector in Colombia are most relevant for other States?

Teaching Resources

Notes

[*] This teaching note may be cited as:

Carolina Olarte-Bácares, Laura Bernal-Bermúdez, Marco Velásquez Ruiz, and Jose Fernando Gómez Rojas, “Teaching Note: Business and Peacebuilding,” in Teaching Business and Human Rights Handbook (Teaching Business and Human Rights Forum, 2021), https://teachbhr.org/resources/teaching-bhr-handbook/teaching-notes/business-and-peacebuilding/.

[1] United Nations, “UN Peacebuilding: An Orientation” (New York, 2010), https://www.un.org/peacebuilding/sites/www.un.org.peacebuilding/files/documents/peacebuilding_orientation.pdf.

[2]  See, e.g., C. McEwan, E. Mawdsley, G. Banks, and R. Scheyvens,“Enrolling the Private Sector in Community Development: Magic Bullet or Sleight of Hand?” Development and Change (v. 48 , no. 1, 2017), 28–53; S. Ghimire and Bishnu Raj Upreti, “Corporate Engagement for Conflict Transformation: Conceptualising the Business-Peace Interface,” Journal of Conflict Transformation and Security (vol. 2, no. 1, 2012), 77–100; J. Miklian and Juan Pablo Medina Bickel, “Theorizing Business and Local Peacebuilding through the ‘Footprints of Peace’ Coffee Project in Rural Colombia,” Business & Society ( vol. 59, no. 4, 2020), 676–715; J. Miklian, “The Role of Business in Sustainable Development and Peacebuilding: Observing Interaction Effects,” Business and Politics (vol. 21, no. 4, 2019), 569–601.

[3] Jason Miklian, “The Role of Business in Sustainable Development and Peacebuilding: Observing Interaction Effects,” Business and Politics 21, no. 4 (2019): 569–601.

[4] Leigh A. Payne, Gabriel Pereira, and Laura Bernal Bermúdez, Transitional Justice and Corporate Accountability from Below: Deploying Archimedes’ Lever (Cambridge: Cambridge University Press, 2020); Irene Pietropaoli, Business, Human Rights and Transitional Justice (Routledge Press, 2020); Laura Bernal Bermudez and Daniel Marín López, “Los Empresarios En La Guerra: Verdad Judicial Sobre La Complicidad Empresarial En Colombia” (Bogotá: Dejusticia, 2018).

[5] Marco Palacios, Violencia pública en Colombia, 1958-2010, 1a ed., Sección de obras de historia (Bogotá: Bogotá : Fondo de Cultura Económica, 2012); Rafael Pardo Rueda, La Historia de Las Guerras (Bogota: Penguin Random House Group Editorial S.A.S., 2015); Francisco Gutiérrez, El Orangután Con Sacoleva Cien Años de Democracia y Represión En Colombia (1910-2010) (Bogotá: Penguin Random House Group Editorial S.A.S., 2014); Gustavo Duncan, Los Señores de La Guerra De Paramilitares, Mafiosos y Autodefensas En Colombia (Bogotá: Penguin Random House Group Editorial S.A.S., 2015).

[6] See Colombian Congress, Law 1819 of 2016, article 236 and subsequent articles, http://www.secretariasenado.gov.co/senado/basedoc/ley_1819_2016.html.

[7] See Presidential Decree 1650 issued in October 2017, http://es.presidencia.gov.co/normativa/normativa/DECRETO%201650%20DEL%2009%20DE%20OCTUBRE%20DE%202017.pdf

[8] See Decree 1650 of October 2017, ibid.

[9] Revista Dinero, “Las Zomac Ya Tienen 407 Nuevas Empresas,” Revista Dinero, 2018, https://www.dinero.com/pais/articulo/407-empresas-se-han-creado-en-las-zomac/258141.

[10] See Law 1819 of 2016; Law 1943 of 2018, art. 71, http://www.secretariasenado.gov.co/senado/basedoc/ley_1943_2018.html.

[11] A study on the nature and extent of symbolic reparations provided by corporate actors in transitional scenarios, financed by Swisspeace Institute, is currently being developed by the University of St. Gallen (Switzerland) in collaboration with the “Centro Regional de Empresas y Emprendimientos Responsables – CREER”.  See also Olarte and Velásquez, “Access to remedy and the construction of collective memory. new perspectives under the realm of the Colombian transitional justice project. Notes from the field.” Business and Human Rights Journal – Special Edition on Latin America (forthcoming).

[12] Ruggie, 2013. 

[13] Payne, Pereira, and Bernal Bermúdez, Transitional Justice and Corporate Accountability from Below: Deploying Archimedes’ Lever.

[14] Payne, Pereira, and Bernal Bermúdez, ibid.

[15] Payne, Pereira, and Bernal Bermúdez ibid.

[16] Michalowski, Cruz Rodríguez, Orjuela Ruiz, and Gómez Betancur. Guía de orientación jurídica. Terceros civiles ante la Jurisdicción Especial para la Paz – JERP. Bogota, Dejusticia, 2020.

[17] Miklian, “The Role of Business in Sustainable Development and Peacebuilding: Observing Interaction Effects”; M. Blowfield and C.S. Dolan, “Business as a Development Agent: Evidence of Possibility and Improbability,” Third World Quarterly 35, no. 1 (2014): 22–42; S. Kindornay and F. Reilly-King, “Promotion and Partnership: Bilateral Donor Approaches to the Private Sector,” 2013, www.oefse.at/Downloads/publikationen/oeepol/Artikel-A2013/3_Kindornay_Reilly.pdf.

[18] Jefferson Jaramillo Marín, Pasados y Presentes de La Violencia En Colombia Estudio Sobre Las Comisiones de Investigación (1958-2011) (Bogotá: Editorial Pontificia Universidad Javeriana, 2014).

[19] Jason Miklian and Juan Pablo Medina Bickel, “Theorizing Business and Local Peacebuilding through the ‘Footprints of Peace’ Coffee Project in Rural Colombia,” Business & Society 59, no. 4 (2020): 676–715.

[20] Miklian, “The Role of Business in Sustainable Development and Peacebuilding: Observing Interaction Effects.”

[21] Karen Ballentine and Virginia Haufler, Public Policy for Conflict-Sensitive Business (New York: UN Global Compact, 2009); Jason Miklian, “The Dark Side of New Business,” Harvard International Review 38, no. 4 (2017); A. Wenger and D. Mockli, Conflict Prevention: The Untapped Potential of the Business Sector (Boulder: Lynne Reinner Publishers, 2003).

[22] Portafolio, “Más de 650 Empresas Del País Ya Emplean a Excombatientes,” Portafolio, February 12, 2017, https://www.portafolio.co/economia/empresas-que-emplean-a-excombatientes-en-colombia-503322.

[23] See Presidential Decree 893 of 2017, https://www.unidadvictimas.gov.co/es/decreto-893-del-28-de-mayo-de-2017/37035.