Tools of Torture and Repression in South America SECTION VI: CORPORATE OBLIGATIONS Traditionally, obligations arising out of international human rights law had been understood to rest solely on states. However, this viewpoint has evolved significantly in recent decades and the UN Guiding Principles on Business and Human Rights (the Guiding Principles) set out the responsibility of corporate actors to respect human rights. The Guiding Principles, although not legally binding, have significant moral force deriving from their unanimous endorsement by the UN Human Rights Council. Furthermore, they are based on existing international legal instruments and principles, and in abiding by them, business enterprises can reduce the risk of facing legal action as a consequence of their activities. In June 2014, the UN Human Rights Council adopted a resolution to create an open-ended intergovernmental working group mandated with the elaboration of ‘an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’.255 The Guiding Principles, based on the three pillars of Protect, Respect and Remedy, are the most widely accepted source of corporate human rights responsibilities. Due diligence is one of the concepts underpinning the responsibility of business entities to respect human rights. The Guiding Principles stipulate that this process should be initiated as early as possible and it ‘should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed’.256 Any company selling law enforcement equipment to end users known to be committing serious human rights violations would risk being in breach of these standards and could face possible legal action for complicity in human rights violation involving the equipment. The question of corporate complicity in human rights violations has been examined in depth by the International Commission of Jurists (ICJ).257 The ICJ panel considered that a company could be complicit in gross human rights violations when the company’s conduct enabled, exacerbated or facilitated the abuse, and the company knew, or ought reasonably to have known, of the risk that the abuse would occur. Furthermore, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions state that the responsibility of businesses to avoid causing or contributing to adverse human rights impacts through their own activities and address adverse human rights impacts in which they are involved extends to impacts that are directly linked to their operations, products or services. This includes businesses supplying ‘less-lethal weapons or equipment or surveillance technologies which are used in the policing of assemblies’.258 There are several actions companies can take to mitigate the risk of breaching human rights standards and lessen their exposure to potential civil and/or criminal liability for complicity in human rights violations. Putting robust due diligence mechanisms in place would be a major advance in this regard. Such mechanisms should contain, at the very minimum, regular analysis of the human rights context in which the end user is operating, taking into account factors such as the use of force rules in place 255 UN Human Rights Council, Resolution 26/9, 25 June 2014, UN Doc. A/HRC/26/L.22/Rev.1. UN Guiding Principles on Business and human Rights, Principle 17. 257 International Commission of Jurists, Report of the ICJ Expert Legal Panel on Corporate Complicity in International Crimes, Volume 1, 2008. 258 UN Special Rapporteurs Joint Report, note 39, para. 83. 256 59