Conflict-Affected and High-Risk Areas and Due

Diligence

7th meeting of the ICGLR-OECD-UN GoE Joint Forum on

Responsible Mineral Supply Chains

Paris, 26 May 2014

OECD Due Diligence Guidance

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‘conflict-affected areas’ and ‘high-risk areas’ trigger heightened need for due diligence

OECD Due Diligence Guidance is risk-based due diligence, i.e. obligation to identify, prevent, and mitigate risk

Risk: potentially adverse impact of companies’ operations or activities when minerals/gold are sourced from or transit through a CAA or HRA

Criteria and Indicators

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Risk assessment – context (factual circumstances of sourcing, operations, trading, etc. and relationships with third parties) evaluated against international standards, including human rights and international humanitarian law (if applicable)

Indicators are means to identify risk factors: origin or manifestation of the risk

Armed Conflict and International Crimes as defined under International Law

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International (e.g. between two or more states)

Non-international (e.g. between state and organized non-state armed group)

War crimes may only be committed in connection with an armed conflict as defined under international law.

Genocide and crimes against humanity may be committed within or outside an armed conflict.

Indicators of Conflict-Affected Area: Armed Conflicts as defined under International Law

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One or more states attack another state’s territory or armed forces with armed, naval, or air forces (IAC)

One or more states occupy another state’s territory without the latter’s consent (IAC)

Armed groups conducting regular military style operations against the national army or police, or another armed group (NIAC)

An organized armed group controls part of the territory of a state (NIAC)

The existence of an armed conflict is determined on the facts. Sometimes, the UN Security Council or the ICRC give their view that international humanitarian law is applicable.

Indicators of Conflict-Affected Area: Areas affected by armed conflicts

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Displaced or refugee camps for people fleeing fighting

Spill-over violence from an armed conflict in a nearby area

State is transitioning out of armed conflict

Remnants of armed groups are involved in criminal activity (drug-trafficking and/or mineral and gold smuggling)

Occasional armed clashes between remnants of armed groups and security forces

Impunity for war crimes and serious human rights abuses

Examples of risk factors

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Risk of fuelling armed conflict: direct/indirect support to armed groups, or public or private security forces illegally controlling mine sites, transportation routes or trading centres or extort money and/or minerals at such locations

Risk of complicity in war crimes (including pillage) or other international crimes (e.g. using private or public security forces with a history of violating HR or IHL).

Risk of trading in violation of international law (sanctions regime against country and/or armed groups and their affiliates)

Risk of smuggling and illegal trade

Indicators of High-Risk Area

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Public security forces accused of committing serious human rights violations with impunity

Public security forces arresting large numbers of people without apparent good reason

Judiciary does not enforce law impartially

State is unable to deliver basic social services (health, electricity, education)

Police or security forces cannot safely enter and patrol certain areas

Areas with high levels of sexual violence and sexual exploitation (human trafficking)

Indicators of High-Risk Area

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People forced to join armed forces and/or forced by public security forces to work

Children are engaged in dangerous forms of labour

Criminal networks act with apparent impunity

Disenfranchised communities with grievances

Peaceful protests dispersed by public security forces using grossly excessive force

History of unorganized and spontaneous violence

Examples of risk factors

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Risk of trafficking of people and/or using forced labour

Risk of illicit payments, including to criminal networks (bribes, unofficial “commissions” or ‘taxes’)

Risk of exacerbating social conflict and local grievances

Risk of contributing to or benefitting from forced displacement

Risk of complicity in human rights abuses by engaging public or private security forces

Academy tools for industry

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Conflict-affected and high-risk areas worldwide map and database and explanatory Briefing Paper

War Report

Academy tools for industry: RULAC

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Geneva Academy of International Humanitarian Law and Human Rights

Rue de Lausanne 120B – CP 67 – 1211 Genève 21 – Switzerland

Tel: + 41 (0) 22 908 44 88; Fax: + (0) 22 908 44 99info@geneva-academy.ch

www.geneva-academy.ch