On Friday, November 22, UpRights’ Co-Director Valérie Gabard took part in a conference on corporate human rights due diligence co-hosted by the University of Nîmes , Juristes sans Frontières, and with the support of the Montpellier, Nîmes and Alès Bar associations. 

The conference brought together experts and practitioners to discuss the growing responsibilities of businesses to respect human rights and protect the environment.  

As part of her panel, Valérie discussed the importance of conducting heightened human rights due diligence for companies operating in conflict zones or high-risk areas, focusing on its value to minimize risks of harms for civilians and for businesses to contribute by the activities to the commission of serious human rights violations. 

 

Revisiting the Foundations: Heightened Human rights Due Diligence in Conflicts or High-Risk Zones 

Valérie began by grounding her discussion in the standards set by the UN Guiding Principles on Business and Human Rights, which codified the corporate responsibility to respect human rights. Corporate responsibility requires businesses to conduct human rights due diligence, a process consisting of identifying, preventing, and mitigating risks of human rights harm. In this regard, Valérie notably stressed that traditional due diligence processes need to be tailored to high-risk areas where armed conflict, weak governance, and systemic violence exacerbate vulnerabilities. 

Heightened human rights due diligence, as she explained, therefore emerges in the form of complementary UN guidelines proposing a more tailored approach to the human rights situation on the ground. This includes: 

  • Understanding the local conflict context to anticipate how business operations might impact or exacerbate existing tensions. 
  • Engaging meaningfully with affected stakeholders, such as displaced communities, local authorities, and, where feasible, even armed groups. 
  • Applying a comprehensive legal framework that integrates international humanitarian law and international criminal law alongside human rights standards. 
  • Planning a disengagement strategy in advance as an option for addressing adverse human rights impact but taking into account whether suspending or exiting could exacerbate tensions within populations and whether the harms outweigh the benefits. 

 

Building on UpRights’ Work: The TotalEnergies Case 

Valérie’s presentation drew from UpRights’ 2023 report on TotalEnergies’ natural gas project in Cabo Delgado, Mozambique—a prime example of the consequences of inadequate human rights due diligence in a conflict-affected region. Commissioned by Justiça Ambiental!, Friends of the Earth Europe, Friends of the Earth, Milieudefensie and conducted independently by UpRights, the report highlighted significant shortcomings in TotalEnergies’ approach to heightened human rights due diligence and conflict sensitivity. 

The Cabo Delgado region has indeed been embroiled in an armed conflict since 2017, marked by egregious human rights abuses and violations, including mass killings, sexual violence, and forced displacement committed by both the armed group and the Mozambique armed forces. Despite these conditions, TotalEnergies failed to implement a heightened due diligence process when it became the operator of the project in 2019 but also in 2021 when it finally conducted its own human rights due diligence process. 

This failure to conduct a heightened human rights due diligence process led to a disregard of whether the Project’s presence and activities may contribute to the conflict and to the serious human rights violations and abuses committed against local population.  

For instance, TotalEnergies and the government of Mozambique signed a Memorandum of Understanding providing that the project’s area of operation will be secured by a Joint Task Force (JTF) composed of the Mozambican military and police force. This agreement includes material and financial support to the armed forces. If the HRRD process had conducted an heightened human rights due diligence process, it may have led TotalEngeries to realize that the relationship between the Project and the Mozambican armed forces could be considered as a form of assistance or support from the Project to the JTF part of the Mozambican armed forces, a party to the conflict.  

UpRights’ report argued that a robust due diligence process could have anticipated these risks, mitigating harm to civilian populations and shielding the company from potential complicity in international crimes. 

Valérie notably emphasized that these findings are not hypothetical concerns but a stark warning for businesses operating in similar contexts. The absence of proper due diligence not only exacerbates human suffering but also exposes corporations to significant legal and reputational risks. 

Recent allegations of serious human rights violations involving the Mozambican military forces providing security for TotalEnergies’ project in Cabo Delgado have once again underscored that point and the importance of ensuring that HRDD frameworks fully consider the specific challenges of conflict-affected areas and of a thorough and sensitive approach in safeguarding communities. 

 

Heightened human rights Due Diligence as a Preventative Tool 

In her intervention, Valérie articulated a clear vision of what enhanced due diligence entails for businesses in conflict-affected and high-risk areas. Beyond traditional human rights assessments, it demands a nuanced understanding of local conflict dynamics and their interplay with business operations. For example: 

  • Conflict-sensitive mapping: Businesses must identify root causes, key actors, and potential triggers of violence within the regions where they operate. 
  • Holistic risk assessment that includes the conflict and human rights situation in the country: This involves evaluating the potential for operations to fuel existing tensions or create new grievances. 
  • Proactive stakeholder dialogue: Companies need to engage directly with affected communities by the conflict and serious human rights violations and consider their perspectives in decision-making processes. 

Valérie also highlighted the importance of planning for worst-case scenarios, such as the suspension of operations. TotalEnergies, for instance, lacked a responsible exit strategy when violence escalated in Cabo Delgado, leaving workers, subcontractors, and displaced communities unsupported.  

 

Toward a Binding Framework 

Valérie concluded her presentation with a forward-looking perspective, linking heightened human rights due diligence to emerging legal frameworks. While the UNGPs provide foundational principles, they lack binding force. However, the new European directive on corporate sustainability due diligence marks a significant step forward, making Human rights due diligence mandatory for European businesses. The European directive expressly mentions the importance of conducting this process in its heightened form for businesses operating in conflict zones and high-risk areas. 

 

UpRights’ Vision for Change 

Valérie’s intervention reaffirmed UpRights’ commitment to promoting accountability and the rule of law particularly in fragile human rights contexts. 

The TotalEnergies case, she noted, is both a cautionary tale and a call to action. Heightened human rights due diligence is not merely a regulatory hurdle but must be seen as a moral imperative for businesses that wish to operate responsibly in a globalized world.  

On Tuesday 19 November, Global Standard, the non-profit that manages the Global Organic Textile Standard (GOTS), released its Due Diligence Handbook for Auditors Version 1.0 which is designed to support compliance with enterprises’ human rights due diligence obligations. UpRights is pleased to have supported GOTS in this process with research, analysis and drafting.  

The Due Diligence Handbook for Auditors complements the Due Diligence Handbook for Certified Entities, which was released in 2023 and updated in September 2024 also supported by UpRights. Whereas the Handbook for Certified Entities requires enterprises to undertake six steps of due diligence in relation to their operations and supply chains, the Handbook for Auditors gives practical guidance on auditing compliance with such due diligence criteria, as well as GOTS’ wider human rights and social criteria. Both Handbooks bring the GOTS system closer to the system of the Organisation for Economic Co-operation and Development, as well as legislative developments worldwide including the European Union’s Corporate Sustainability Due Diligence Directive. 

 The essence of this initiative is to give auditors the support, techniques and knowledge they need, including on challenges and best practices, to promote the best possible audits of enterprises’ performance. This seeks to move business and human rights forward beyond mere labelling, beyond detailed codes of environmental, social and governance criteria, and towards having both enterprises and auditors ensure responsible business conduct. UpRights looks forward to continuing this trajectory with the Global Standard.     

 For further details see here

 

UpRights is dedicated to enabling transparent, rule of law-based systems, including promoting evidence-based business and human rights solutions and developing transitional justice frameworks for conflict-affected or unstable regions.

In the context of business and human rights, we work with stakeholders to promote human rights due diligence, including in conflict-affected environments by engaging in the development and implementation of frameworks that encourage responsible corporate conduct.

In the field of transitional justice, our efforts are based on the belief that transparent, rule of law-based systems are essential for fostering sustainable and just societies. This requires working with all parties to enable effective legal mechanisms, ensure public trust and promote dialogue.

 

On 11 December 2023, Human Rights Activists (HRA) in Iran and UpRights filed a submission before the United Nations Fact-Finding Mission on the Islamic Republic of Iran (FFMI). The submission contends that crimes against humanity, and in particular persecution on political and gender grounds, have taken place in the Islamic Republic of Iran since at least 16 September 2022.

Analysing information collected and verified by HRA and two partner organizations, the submission demonstrates that there are reasonable grounds to believe that the crackdown by the Iranian authorities on the peaceful protests that followed the death of Mahsa Zhina Amini, and other violations related to the protests since September 2022, constitute a widespread and systematic attack against the civilian population. Against the background of the “Woman, Life, Freedom” protests, the submission highlights specific examples of the violence employed by the Iranian government including instances of arbitrary arrest and detention, sexual violence, and murder. It demonstrates that those examples qualify as underlying acts of crimes against humanity and severe deprivations of fundamental rights.

The submission outlines how agents of the Iranian government intended to discriminate against women and girls especially on the basis of gender, with these groups singled out for persecutory treatment including physical and psychological abuse, the use of derogatory language and acts of sexual violence including rape. The submission recognises in this respect that individuals have also been targeted on political grounds. It stresses, however, the intersectional nature of the violations to which women, girls and LGBTQI+ individuals have been specifically subjected by the Iranian authorities for their perceived non-compliance with established gender norms and discriminatory laws and policies.

The submission concludes with recommendations by HRA to the FFMI and the international community to establish accountability for the violations outlined in the submission.

UpRights thanks HRA for the opportunity to contribute to this important issue and in particular analysis of the crime against humanity of persecution on gender grounds. While the entirety of the submission has not been made public at this time, an executive summary of the facts is available here.

On November 21st and 22nd, 2023, UpRights’ Co-Directors Valerie Gabard and Asa Solway, along with Senior Legal Advisor David Kinnecome, participated in a series of events organized to facilitate knowledge exchange among legal experts and enhance the capacity of Ukrainian judges in the realm of international criminal law.

On November 21st, Valérie and Asa engaged in a thought-provoking session promoted by the T.M.C Asser Instituut focusing on judgement drafting in international crimes cases. The discussion began with their relevant experience at international criminal tribunals and then moved to a specific discussion of Article 438 of the Ukrainian Criminal Code and the issues related to the applicability of international criminal law in light of its blanket provision concerning war crimes.

The presentation integrated insights from the Benchbook on the Adjudication of International Crimes in Ukraine, a resource crafted by Ukrainian judges, UpRights, and Global Rights Compliance in close cooperation with the Ukrainian Supreme Court, the National School of Judges of Ukraine and with the support of USAID and the Matra Project to aid judges in the interpretation and application of relevant domestic offenses.

On November 22nd, in a separate workshop, David Kinnecome, UpRights’ Senior Legal Advisor, joined Valérie and Asa for a workshop on comparative law organized by the USAID Justice for All Activity as part of the Inter-University Programme on International Criminal Law and Procedure for Ukrainian Law Schools (IUP-UA).

The workshop provided a platform for Ukrainian law faculties to engage in in-depth discussions on issues related to international criminal law as applied in Ukraine. The trio’s presentation covered a spectrum of topics, including the role of international law in adjudicating war crimes cases under Article 438 of the Criminal Code of Ukraine and they also explored aspects of in-absentia trials and the admission and assessment of digital evidence, drawing where relevant from the practice of international tribunals.

UpRights is pleased to support the organisations’ commitment to promoting knowledge-sharing in international justice. Read more about these visits here, about the IUP-UA Project here and read the Benchbook on the Adjudication of International Crimes.

UpRights’ Co-Director Asa Solway had the opportunity to teach a course on self-determination in international law at the University of California, Berkeley School of Law.

“Self-Determination of Peoples in International Law” aims to familiarise students with the legal foundations of self-determination in international law, considering its relevance in the United Nations Charter, the jurisprudence of the International Court of Justice, decolonization and modern dynamics of both national and international self-determination movements.

Throughout the course, students engaged in discussions and debates on a range of pertinent issues, including decolonization, secession minority rights, state sovereignty, and claims to natural resources.

The course provides a platform for students to explore contemporary approaches to the concept of the right to self-determination in light of modern advocacy movements, as well as ongoing debates surrounding the applicability, scope, and original intent of this right as envisioned in the drafting of the United Nations Charter.

UpRights is thrilled to announce a significant achievement in our ongoing partnership with the Global Organic Textile Standard (GOTS). In order to support more sustainable and ethical business practices in the textile industry, UpRights assisted GOTS in the creation of the GOTS Due Diligence Handbook for Certified Entities. This document will strengthen GOTS’ existing frameworks to ensure Certified Entities incorporate effective due diligence into their operations while bringing GOTS closer to the Organisation for Economic Co-operation and Development’s (OECD) frameworks.

GOTS’ Due Diligence Handbook for Certified Entities complements the most recent Standard and Implementation Manual, released in March 2023 with support from UpRights. The Standard and Implementation Manual’s criteria pertaining to the environment, chemical input, social and human rights, and governance, are now supplemented with a comprehensive due diligence management process.

GOTS’ criteria and due diligence are now also brought closer to the OECD’s comprehensive international framework for due diligence for responsible supply chains in the garment and footwear sector. This is part of a rigorous alignment assessment process, which is supported by the German Federal Ministry for Economic Cooperation and Development, and which began in July 2023 and is expected to go into 2024.

The result will assist and empower all GOTS Certified Entities to conduct effective due diligence, tailored to the unique circumstances of each entity. This is set out in a practical, six-step process to proactively address risk of harm and adverse impacts to human rights and the environment. It is a roadmap to identify; prevent; track; communicate; and remedy those adverse impacts within Certified Entities’ operations and supply chains. With cooperation among Certified Entities and working with the entire supply chain, from raw fibre harvesting, through responsible manufacturing, up to labelling to provide credible assurance to end consumers.

UpRights looks forward to continuing its cooperation with GOTS through the development of further instruments and training for GOTS Approved Certification Bodies and Auditors. Most of all we look forward to witnessing the positive impact of these efforts as companies strive to uphold human rights and environmental responsibility.

In 2023, UpRights and The Hague Academy for Local Governance developed a Training of Trainers on transitional justice, as well as an interactive online training, for Ukrainian civil servants. In recognition of the International Day of Peace on September 21st, UpRights’ co-director, Asa Solway, discussed with the Hague Academy the importance of transitional justice processes in Ukraine including in light of the full-scale Russian invasion of Ukraine.

Asa observed that the training is intended to serve as a toolkit designed to help societies confront the aftermath of large-scale past conflicts, repressions, violations, or abuses. In this regard, transitional justice is composed of different processes designed to address challenges that arise during and following conflict and periods of serious human rights abuses to ensure justice and accountability, strengthen the rule of law and promote reconciliation through a victim-centered approach.

Asa observed that the situation in Ukraine faces a plurality of conflict-related challenges that, viewed through these lenses, can be addressed through transitional justice processes including by giving voice to those most affected. He further noted that although peace requires long-term commitment, communities will have the best chance to begin to rebuild while focusing on those most vulnerable if an organised approach is taken that rooted in the rule of law.

Read the full interview here and read the Benchbook on the Adjudication of International Crimes

UpRights prepared an independent expert report assessing the Human Rights Due Diligence (HRDD) process of the Mozambique Liquified Natural Gas (LNG) Project operated by TotalEnergies. This report, commissioned by Justiça Ambiental!, Friends of the Earth Europe, Friends of the Earth, Milieudefensie was published today.

While clear signs indicate that TotalEnergies is considering officially restarting the development of the LNG project it operates in the Northern Province of Cabo Delgado in Mozambique, the independent review conducted by UpRights highlights gaps and omissions in the HRDD assessment conducted in 2020 and in the subsequent Action Plan. The report also points to the significant disconnect between the project’s public commitment in its human rights policy to respect human rights and its actual implementation in the Project’s operations and the human right situation on the ground. While some of the limitations encountered in conducting the process may be related to the COVID-19 pandemic, it does not obliviate the shortcomings identified in the report.

The main area of concern relates to the disregard in the HRDD process of the armed conflict in Mozambique. The HRDD assessment conducted in 2020 and the following Action Plan of TotalEnergies fail to properly prioritize and consider the armed conflict and to conduct heightened HRDD with a conflict-sensitive approach. No justification can be found for such a disregard given that the LNG project has been operating in a conflict-affected area since 2017 and that TotalEnergies became the operator of the project in September 2019. As a result, the human rights due diligence process fails to:

Accurately assess the potential human rights impact of the Project on the security situation of the communities vis-à-vis the insurgents and the Mozambique security forces.

Consider international humanitarian and international criminal law as relevant legal frameworks despite their undeniable relevance to the context of the Project’s operation.

Assess the real risk of being considered complicit in international humanitarian law violations or war crimes allegedly committed by the Mozambican armed forces.

Comprehensively address the issue of gender and conflict as part of any heightened human rights due diligence.

This review was conducted on the basis of documents made publicly available by TotalEnergies. The public scrutiny of the implementation of HRDD by the LNG Project was limited by the unavailability of several important documents as well as the inadequate level of detail and lack of explanation of certain key considerations in the documents available.

Read the Assessment of TotalEnergies’ Mozambique LNG Project Human Rights Due Diligence

On July 12, 2023, UpRights Co-Director Valérie Gabard led the 11h lecture of the Summer School on International Criminal Justice organised by the University of Amsterdam. The Summer School examines the juridical and empirical sides of mass atrocities, striving to give its attendees a better understanding of the nature of international crimes, of their perpetrators and of the role of the international community in pursuing international justice.

UpRights provided students with a lecture on the role of civil society to fill the accountability gap for international crimes. Notably, while international tribunals played an undeniable role in holding perpetrators accountable, international actors like civil society and victim representatives have progressively attempted to mend the limitations of the current international legal order.

To illustrate the creative ways in which civil society organizations at the national and international level are trying to assist to fill this accountability gap, Valérie Gabard discussed the important role of civil society organizations in documenting international crimes and preserving evidence, highlighting in particular the best practices to ensure the efficacy of the documentation and the importance of employing creative legal thinking to assist victims in their quest for justice.