HRW and SLDP Guide On Human Rights-Compliant Procurement Processes In Syria

1. Why is it important to ensure strong human rights due diligence in procurement processes in Syria?

2. What are key challenges to implementing human rights due diligence in procurement processes in Syria?

3. What are the legal and policy frameworks underlying human rights-compliant UN procurement processes?

4. Which human rights considerations should be considered in procurement processes, and how can these be translated into criteria?

5. How can UN agencies assess the extent to which they may be involved in human rights abuses through their procurement processes?

6. Where can UN agencies include human rights considerations in their existing procurement processes?

Click here for a downloadable version of the Guide on Human Rights-Compliant Procurement Processes in Syria.

 

1. Why is it important to ensure strong human rights due diligence in procurement processes in Syria?

Over a decade of conflict has decimated Syria’s infrastructure, killing hundreds of thousands and displacing millions more. The enduring conflict has also had a detrimental impact on the economy, with the UN estimating economic losses at $442 billion dollars.[1] These catastrophic costs translate into a massive loss of livelihoods, with around 11.7 million people dependent on humanitarian assistance.[2] The assistance is primarily provided by UN agencies, the International Committee for the Red Cross (ICRC), and international non-governmental humanitarian organizations.

Parties to the Syrian conflict, especially the Syrian government, have committed egregious violations of human rights and international humanitarian law — from arbitrary detention and torture,[3] to property confiscation,[4] indiscriminate strikes,[5] and the use of prohibited weapons.[6] Given the scale and severity of human rights violations in Syria, humanitarian agencies should proactively avoid contributing to or facilitating such abuses, abide by the humanitarian principle of do-no-harm and their existing commitments to human rights, as well as mitigate the reputational risks associated with facilitating human rights abuses.

Humanitarian organizations primarily operate on the basis of permissions provided by the Syrian government, and in cooperation with  its approved partners. This has become increasingly true as more and more areas have come under the control of the Syrian government, along with the gutting[7] of the UN Security Council-backed cross-border aid mechanism, which was the only way that UN agencies could guarantee delivering humanitarian assistance to areas not held by the Syrian government without the government’s permissions. Given the Syrian government’s record of egregious human rights abuses, UN agencies risk contributing to or facilitating[8] human rights abuses, including through procurement. As such, it is imperative that UN agencies improve their human rights due diligence capacities. The UN itself acknowledged the importance of human rights due diligence in circumstances where there is a real risk that a recipient of UN support is involved in grave violations of international humanitarian law or international human rights law, as exemplified by the UN Human Rights Due Diligence Policy on UN Support to non-UN Security Forces.[9]

The guidance below seeks to provide recommendations that can assist UN agencies in refining their procurement processes.

Despite requirements under international law and the UN’s internal guidelines to ensure UN procurement is consistent with human rights, in the case of the  UN agencies’ procurement processes in Syria that we have examined did not appear to include robust human rights due diligence assessments.[10] Instead, they often use the existing UN sanctions list as a stand-in. Sanctions are an inadequate replacement for human rights due diligence in Syria, as al-Qaeda, its affiliates, and ISIS are the only sanctioned groups on UN lists due to the politicized requirement of UN Security Council approval.[11] This means that other perpetrators, including the Syrian government and the Turkish-backed Syrian National Army, which have engaged in war crimes and serious human rights abuses, are not reflected in the UN sanctions system. This results in a significant gap in the agencies’ ability to identify and mitigate human rights risks associated with their procurement practices.

Further, many of the pre-war commercial networks are defunct, and Syria is largely characterized as a war economy. The business networks that survived in government-held Syria are closely tied to the Syrian government,[12] which heightens the likelihood that they are involved in abuses. The conflict reinforced the ties between the Syrian government and the “integrated elite,”[13] composed of business actors with social and family links to the government, which had already been the main beneficiaries of the policies that enabled private-sector involvement in key areas of the Syrian economy in the early 2000s.[14] Unlike other segments of the Syrian economy,[15] the “integrated elite” did not leave the country and started playing an increasingly political role first by funding the government’s orchestrated mass rallies and promoting government propaganda through their private media companies and later by funding pro-government paramilitary groups.[16] The conflict also resulted in the emergence of a “conflict elite,”[17] composed of previously little-known businesspersons and leaders of paramilitary groups that, by becoming involved in the war economy, accumulated considerable wealth and are now integrating into the formal economy.[18] As a result of the loyalty demonstrated and the continued support provided by both networks, the Syrian government granted them preferential access to industries and sectors that were abandoned when competitors left Syria.[19] The economic actors that emerged during the conflict were also rewarded through their integration in the political system as demonstrated by the changes in the composition of local councils,[20] boards of chambers of commerce and of industry,[21] and in the Syrian parliament since 2014.[22] Furthermore, the government gave both the “integrated” and the “conflict elite” preferential access to the business opportunities arising from the implementation of the new urban planning policies and legislation,[23] which include the disproportionate destruction of civilian properties,[24] the intentional destruction of property records,[25] and the passing of legislation which has the effect of expropriating residents of their property.[26]

Finally, the most developed regimes around human rights compliance in procurement and supply chains focus on child labor, labor and sexual exploitation-related abuses, environmental abuses, and hiring of private security forces. In the context of Syria, the range of human rights abuses that a vendor may be involved in are much wider, and may include contributing to or facilitating torture, abuse in detention, unlawful confiscation of property, and discriminatory distribution of aid, among others. Without conducting human rights due diligence specific to the Syrian context, UN agencies may find themselves financing entities that are owned or run by actors who have or are committing human rights abuses to provide supplies or services to their operations. The UN may also provide funding that enables these actors to conduct abuses in other contexts outside that of the UN-funded projects. 

The UN’s recent creation of a Regional Dialogue Mechanism (RDM) may have the potential to improve human rights due diligence and transparency regarding risk assessments related to Syria procurement processes. The RDM offers a forum for UN agencies, the UNCT and representatives of donor countries to discuss human rights-related risks of major procurement processes being undertaken in Syria under UN auspices. However, for the RDM to be truly effective,  it is essential that UN agencies and donors actively and transparently make use of the RDM to flag human rights risks, and they should consult nongovernmental human rights organizations as needed.

Click here for a downloadable version of the Guide on Human Rights-Compliant Procurement Processes in Syria.

 

2. What are key challenges to implementing human rights due diligence in procurement processes in Syria?

The humanitarian response in Syria is beset with challenges, including: restrictions on access imposed by the Syrian government that limit agencies’ ability to conduct site visits of their projects, areas that they serve or other areas in Syria; requirements that agencies implement programming through local partners closely tied to the Syrian government; and restrictions on human rights monitoring and protection programming. Human Rights Watch has previously recommended that UN agencies work collectively[27] to challenge these restrictions, including by prioritizing negotiation for most underserved areas and reporting transparently about implementation challenges. Since then, the UN has sought to improve access by creating sub-national office hubs to reduce the number of required authorizations to undertake monitoring missions and field assessments. According to OCHA, this has lead to increased access though administrative and security obstacles remain and access is still piecemeal, particularly in some formerly-held opposition areas.

Human Rights Watch and the Syrian Legal Development Programme acknowledge the difficulties faced by UN agencies in procurement. According to the UNCT, 60% of procurement in Syria occurs internationally, and the UN has been able to identify ways to address the unintended effects of unilateral measures on procurement. The re-negotiation of the cross-border resolution to limit cross-border operations into Syria is another aspect that makes external procurement more difficult. The Syrian government has also put in place restrictions on importing supplies, which amount to around 50% of the total import values for Syria. The restrictions are likely to make it difficult for humanitarian agencies to procure things sustainably, especially given the loss in purchasing power due to the demarcation of the Syrian currency.

As such, any procurement process would have to balance a proactive understanding and mitigation of human rights risks while still allowing UN agencies’ ability to meet humanitarian needs. However, as the indicators in Annex show, there are some sectors where the risk of contributing to ongoing abuses is so high that we recommend that vendors and UN agencies do not conduct any business in relation to those particular sectors. The guidance below seeks to provide recommendations that can assist UN agencies in refining their procurement processes.

3. What are the legal and policy frameworks underlying human rights-compliant UN procurement processes?

Overarching principles

The UN is bound under international law by an obligation to respect human rights, and statements by former Secretary Generals continue to emphasize this duty:

Support by United Nations entities […] must be consistent with the Organization’s purposes and principles as set out in the Charter of the United Nations and with its obligations under international law to respect, promote and encourage respect for international humanitarian, human rights and refugee law. Consistent with these obligations, United Nations support cannot be provided where there are substantial grounds for believing there is a real risk of the receiving entities committing grave violations of international humanitarian, human rights or refugee law and where the relevant authorities fail to take the necessary corrective or mitigating measures. [28]   (Emphasis added)

The UN’s commitment to human rights was recently reaffirmed by the UN Secretary General in the Call to Action launched on the occasion of the seventy-fifth anniversary of the UN.[29] One of the overarching guiding principles set out in the Call to Action is:

Within the United Nations, human rights must be fully considered in all decision-making, operations and institutional commitments.[30]

Further, the Call to Action includes a commitment by UN mission and non-mission settings to:

[…] ensure that mandate implementation and/or engagement by Resident Coordinators and UN Country Teams [in UN mission and non-mission settings] are informed by a human rights risk and opportunity analysis, including gender specific analysis. In missions that do not have a human rights component, ensure that the Special Representatives of the Secretary-General are provided with the necessary capacity and expertise on human rights. Expand, as necessary, the presence of Human Rights Advisers to UN Country Teams.[31]

The most recent strategic plans of some of the UN agencies with the largest humanitarian portfolios in Syria stipulate the agencies’ commitment to respect and promote human rights and clearly place human rights principles and standards at the core of their activities.[32]

Procurement-specific policies

There are three UN policy guidelines that govern human-rights compliant procurement practices: the UN Procurement Practitioner’s Handbook, the UN Supplier Code of Conduct, and the UN Parameters and Principles for Assistance in Syria. The latter also incorporates and applies the UN Guiding Principles on Business and Human Rights into the Syrian context.

• The UN Procurement Practitioners’ Handbook is a collection of “common good procurement practices and procedures” within the UN system,[33] and it identifies the following as the four principles that should guide any procurement activity:[34]

• Best value for money;
• Accountability, integrity and transparency;
• Fairness and effective competition; and,
• Best interest of the organisation concerned.

The latter includes the concept of “maintaining the highest image, reputation and interest of the organization through[out] […] the procurement process […].”[35] It also includes an expectation that UN Procurement officers “be constantly aware of how their actions appear to outside observers, and they should always behave in such a way that their actions cannot be perceived as improper. Behaving correctly in a ‘technical’ sense is not enough; it is also necessary to avoid even the appearance of impropriety.”[36]

According to the Handbook, the “UN is committed to conducting business with only those suppliers sharing its values of respect for fundamental human rights, social justice, human dignity, and respect for the equal rights of men and women.”[37] UN entities are expected to “promote ethical conduct in the supply chain”[38] and to “adhere to the principles of the UN Global Compact derived from the Universal Declaration of Human Rights.”[39]

• The UN Supplier Code of Conduct sets forth the UN’s expectations for all suppliers. The Code of Conduct requires suppliers to “support and respect the protection of internationally proclaimed human rights and ensure [not to be] complicit in human rights abuses.”[40] Potential suppliers are required to acknowledge the UN Supplier Code of Conduct as part of the UN procurement process. In addition, the general terms and conditions for contracting with at least two UN agencies, the United Nations Development Programme (UNDP) and the United Nations International Children's Emergency Fund (UNICEF), include compliance by the supplier with the Code of Conduct as an essential term of contract.[41]
• The UN Principles and Parameters for Assistance to Syria[42] have been approved by the Secretary-General and identified by the UN Working Group on Business and Human Rights in a July 2020 report to the General Assembly as a best practice example “for any future reconstruction work.”[43] They stipulate the following:

The UN shall consider carefully human rights and protection implications, especially with regard to where and how assistance is provided. UN assistance must not assist parties who have allegedly committed war crimes or crimes against humanity.

They also indicate:

Rigorous standards of due diligence should apply, drawing from the principles of the Human Rights Due Diligence Policy. The UN shall apply the UN Guiding Principles for Business and Human Rights in all areas of its work in Syria, including in its post-agreement planning.

The UN Guiding Principles on Business and Human Rights (UNGPs), endorsed by the UN Human Rights Council in 2011,[44] are the most authoritative set of international standards regulating businesses’ responsibility to respect human rights. In line with the requirements of the UNGPs, the UN should respect human rights throughout its business operations in Syria.[45] This includes a responsibility to undertake human rights due diligence in order to identify and address actual and potential adverse human rights impacts.[46] Human rights due diligence should cover the adverse human rights impacts the UN may cause or contribute through its own business activities as well as the impacts which may be directly linked to its operations, products or services by its business relationships, including its suppliers.[47]

With regard to their implementation, the UN Principles and Parameters designate that:

A multi-disciplinary working group under the auspices of the UN Syria Inter-Agency Task Force will monitor adherence to the principles and parameters agreed by the UN system in this strategy, including political, legal, and human rights as well as humanitarian and development dimensions, and will report on this to the Secretary-General.[48]

4. Which human rights considerations should be considered in procurement processes, and how can these be translated into criteria?

To avoid making the human rights due diligence process prohibitively costly or resource-intensive, Human Rights Watch and the Syrian Legal Development Programme identified some of the most egregious human rights violations that have been committed during the conflict, and for which there is ample documentation. These are not comprehensive, and procurement officers are encouraged to assess and develop their own scale based on realities where they operate. Within each category, we clarify what prospective connections to procurement may look like.  For a more detailed breakdown of the human rights abuses vendors may be involved in, please refer to Annex.

• Detentions, disappearances, and torture inside Syrian government facilities: Human Rights Watch and others have extensively documented abusive practices by the Syrian government’s intelligence branches, including mistreatment, torture,[49] rape and sexual violence,[50] arbitrary detentions, and extrajudicial execution.[51] The Syrian judicial system, including the Counterterrorism Court,[52] is known for summary decisions, corruption, and a lack of due process. The Syrian government has not held these entities accountable for widespread and systematic abuses over many years, reformed them, or taken any other actions to end their abusive practices. Suppliers facilitating projects related to the building and running of prison systems, judicial courthouses, and other law enforcement public service should not be part of any procurement contract.
• Indiscriminate and unlawful attacks, including with prohibited weapons: Human Rights Watch has documented the extensive use of cluster munitions,[53] chemical weapons,[54] and barrel bombs in the course of the Syrian conflict by multiple parties to the conflict, primarily the Syrian-Russian military alliance. These weapons are prohibited under international law, as they cause excessive harm to the civilian population and are inherently indiscriminate. The Syrian-Russian military alliance has also conducted airstrikes that were indiscriminate and unlawful, and resulted in the loss of protected civilian lives as well as extensive destruction of civilian infrastructure,[55] including hospitals, schools, and markets. Other parties to the conflict, such as anti-government groups and the Islamic State, have shelled indiscriminately and used landmines[56] banned under international law. Any vendor or supplier who has developed, sold, or been involved in the provision of these weapons to the Syrian government should be held accountable, and should not be a part of any procurement contract.
• Syrian government forces’ excessive use of force and extrajudicial executions: Since the start of the conflict, Syrian government forces and pro-government militias have conducted a host of abuses. They have been responsible for capturing and executing people who were trying to escape[57] as the army took over their towns or conducted house searches. They have also committed sexual violence against women[58] and men they captured in raids, looted property of displaced residents, and prevented residents from returning to their homes. Suppliers that have provided financial or material support to the abuses committed by Syrian government forces and by pro-government militias should not be part of any procurement contract.
• Violations relating to property rights, including unlawful demolitions, restrictions on access, and confiscation of property: The Syrian government has passed several urban planning laws that allow it to create redevelopment zones,[59] and appropriate and demolish private property without due process or compensation, and remove the rubble of demolished buildings. While the government has promoted these laws as facilitating reconstruction, Human Rights Watch has shown that both these laws and the Syrian government’s de facto practices contravene international law, and disproportionately harm poorer citizens and people perceived to be opposed to the government.[60] The Syrian government has also restricted access to areas of origin for residents without due cause, and without providing alternative housing, leaving many of those attempting return doubly displaced. Suppliers involved in redevelopments that violate housing, land, and property rights should not be part of any procurement contract.

 

5. How can UN agencies assess the extent to which they may be involved in human rights abuses through their procurement processes?

Businesses have human rights responsibilities that extend throughout their business relationships, as articulated in the UN Guiding Principles on Business and Human Rights, which were unanimously adopted by the Human Rights Council in 2011. They are expected to conduct due diligence to identify human rights risks to which they are linked through their activities, including those carried out by a third party, whether state authorities or other businesses, and take steps to mitigate or avoid contributing to abuses and address them when they occur. When businesses are directly linked to abuses through their business relationships, they are expected to use their leverage to prevent or mitigate such abuses, “even if they have not contributed to those impacts.”[61]

Businesses, therefore, may become complicit in abuses if, for example, they have requested or benefited from the abusive action or have provided financial or logistical support to the abusive entity. They can also be involved in abuses by providing information about the whereabouts of people who were subsequently subject to gross human rights abuses, or by providing the surveillance equipment for the government to identify or apprehend people.[62]

By making UN financial resources available to a business involved/at risk of involvement, in human rights abuses, UN agencies risk becoming themselves implicated in the abuses. The extent of UN agencies involvement in human rights abuses through procurement processes depends on several factors, including:

• The supplier’s level of risk of involvement in the human rights abuses;
• The supplier’s type of involvement in the abuses in question;
• Whether the supplier is involved in past or ongoing abuses.  

The extent of the involvement determines the action UN agencies are expected to take to address the risk. For instance, if a supplier is at a sufficiently high risk of involvement in ongoing human rights abuses and violations of international humanitarian law, UN agencies should not get involved or do business with such an actor even where no alternative is available.

If, on the other hand, a supplier is determined to have been involved in past human rights abuses, or violations of international humanitarian law, the decision of whether or not to award a contract to the supplier will depend on an assessment of the likelihood of future involvement in abuses and on the risk of reputational damage deriving from contracting a human rights abuser. These assessments should depend on objective indicators.

The assessment tool in Annex of this guide aims to assist UN agencies in addressing human rights risks in their supply chain by providing examples of these risks within the Syrian context. More specifically, it aims to facilitate the identification of Syrian suppliers potentially involved in conflict-related human rights abuses. Unless otherwise stated, the tool adopts the UN Guiding Principles on Business and Human Rights’ definition of involvement articulated through the categories of causation, contribution, and direct link. The tool focuses on conflict-related human rights abuses, defined as human rights abuses taking place in the context of and associated with the Syrian conflict.

The Syrian context presents specific features that influence the type of assessment required to identify and address human rights risks in the supply chain. With few exceptions, the conflict-related human rights abuses in which Syrian companies are involved do not occur as part of the companies’ business activity. Rather, in the majority of cases, the involvement results from the conduct of the inviduals with ownership or control over the companies, particularly from their relationship with the Syrian government and the Syrian armed forces.

UN agencies transfer responsibility for such violations to suppliers and vendors to cut costs, but this may result in a lack of transparency or an inability to address key issues. Several agencies operating in the humanitarian sphere refuse to share procurement information. International non-governmental organizations and UN agencies should share human rights risk assessments for sectors in which they are involved. This would reduce the collective burden on mapping and scaling human rights risks.

 

6. Where can UN agencies include human rights considerations in their existing procurement processes?

While not all UN procurement processes are the same, they can generally be divided into four phases.[63] The table below compares each of the four phases to the phases of the procurement process as described in the publicly available procurement manuals of the main UN agencies operating in Syria. In each phase, agencies can include steps that strengthen human rights compliance. This section of the guide aims to provide a general description of each phase and the obstacles to human rights compliance, as well as general recommendations and recommendations specific to each phase. Where possible, each recommendation is directed at a specific actor within the procurement process.

Human Rights Watch and the Syrian Legal Development Programme have also directly communicated with or sent letters to the following UN agencies, as well as the UN Country Team and the UN Human Rights Advisor. We received a response from the UN Country Team, the UN Human Rights Advisor, and the UNOPS which we have reflected in the guide.

 

 

 

Phases as described in the guide	Phase 0 Pre-tender information gathering and planning phase	Phase I Pre-Purchasing (requirements definition, solicitation)	Phase II Purchasing (management of submissions; evaluations and award)	Phase III Post-award implementation and contract management (Post-Purchasing)
In this phase, UN agencies develop an understanding of “the nature of the requirements, the capacity of the contractors, the complexity of the operating environment, the risks involved and the available capacity of [the agency’s] resources.”[64]	In this phase, UN agencies finalise the requirements, including the ineligibility and evaluation criteria, and  develop the solicitation document. This stage is where the agencies determine the size of the contract and set out the technical and other criteria that are required for a successful tender/proposal, as well as the conditions that vendors are required to comply with.	Following the publication of the invitation to bid/proposal request, UN agency procurement officers’ conduct a preliminary screening of the submitted proposals for viability, followed by a more robust assessment of shortlisted proposals. In this phase, UN agencies are also required to vet the vendors to ensure that they are eligible.	Once a contract is awarded, the UN agency in question must finalize the contract, work out the logistics of implementation with the partner and monitor the implementation of the contract.
UN Procurement Practitioner’s Handbook[65]	Market Research  Procurement Planning Procurement strategy	Procurement Planning (cont’d) Procurement strategy (cont’d) Solicitation	Evaluation Contract Award Review and Approval	Contract Contract Management
UNFPA[66]	Procurement Strategy and Planning Sourcing	Procurement Strategy and Planning (cont’d) Solicitation	Management of Submissions Evaluation of Submissions Procurement Process Review and Decisions Awards of Contracts	Contracting and Contractual Instruments Logistics Contract Management
UNOPS[67]	Procurement Strategy, Planning  Requirements Definition Sourcing	Strategy, Planning (cont’d)  Requirements Definition (cont’d) Solicitation	Management of Submissions Evaluation of submissions Procurement process review Awards	Contract finalization and issuance and contractual instruments Logistics Contract Management
UNDP[68]	Procurement Strategy and Planning Sourcing of Suppliers	Requisition Solicitation Process	Sourcing of Suppliers (Vendor Sanctions) Evaluation of Offers and Pre-award Negotiations Procurement Review Committees	Award and Management of Contract
UNPD[69]	Demand Planning, Acquisition Planning, Procurement Strategy and Requirements Definition Sourcing	Demand Planning, Acquisition Planning, Procurement Strategy and Requirements Definition (cont’d) Solicitation	Vendor Registration and Management Management of Submissions Evaluation of Submissions Review by Commitees on Contracts	Awards Contract finalization and issuance of contractual instruments Logistics Contract management and contract administration
UNHCR[70]	Information not publicly available; The UNHCR has procurement guidelines for implementing partners procuring on behalf of UNHCR. However, it is unclear whether the same is applicable to the UNHCR’s own procurement.
WHO[71]	Information not publicly available
UNRWA[72]	Information not publicly available
FAO[73]	Information not publicly available
UNICEF[74]	Information not publicly available
WFP[75]	Information not publicly available