On 16 December 2019, the Committee Seeking Justice for Alethankyaw (CSJA) filed a specific instance against Telenor at the Norwegian NCP. The complaint alleges that Telenor has breached the OECD Guidelines by failing to carry out due diligence before expanding into northern Arakan, despite risks of the company’s involvement in the unfolding crimes against the Rohingya ethnic minority group. The complaint asserts that security forces used a Telenor cellular network tower as a vantage point from which to shoot at fleeing Rohingya men, women and children as they tried to escape Alethankyaw during the last week of August 2017.
The complaint alleges that, since Telenor has been active in Myanmar since at least June 2013, it could not possibly have been unaware of the long-standing apartheid-like policies and official discrimination, even genocide, directed at the Rohingya community. Telenor has previously pulled its personnel out of Alethankyaw in “clearance operations” when government security forces drove out an estimated 100,000 Rohingya into Bangladesh. Therefore, Telenor already knew the risks of the military buildup and strong likelihood of further large scale atrocities against the Rohingya. The complainants state that this means Telenor bears significant responsibility for the harms that resulted from the use of its tower.
Relevant OECD Guidelines
On 27 October 2020, the Norwegian NCP accepted the complaint for further consideration, finding that it raises issues relating, among other things, to recommendations in the OECD Guidelines on due diligence and operation in conflict-affected areas, and is substantiated with references to fact-finding reports from the UN.
On 29 August 2022, the Norwegian NCP published its final statement concluding the specific instance. As the complainants did not wish to engage in mediation, citing a lack of trust in the company, the NCP conducted its own examination of the issues. The NCP found:
- Telenor had not caused or contributed to the misuse of the cellular network tower, but Telenor was directly linked to the adverse impact through a business relationship. At the time in question, the risk of these towers being misused was not reasonably foreseeable, but today that risk is known. Therefore, this risk must be identified and mitigated in Myanmar and other high-risk contexts. Telenor informed the NCP that this risk has been included in its risk assessments.
- Telenor identified and sought to mitigate risks concerning land use and internet shutdown orders in both its pre-investment and ongoing due diligence processes. The NCP encouraged companies to engage with vulnerable groups when it comes to land issues, particularly groups that are de facto stateless. The NCP also encouraged Telenor and other companies to take note of the Office of the High Commissioner for Human Rights’ recommendation: “OHCHR recommends companies to carry out human rights’ due diligence with regard to potential adverse impacts from network shutdowns when entering or renegotiating licence agreements with governments at all levels and to explore all legal options for challenging requests for shutdowns.”
- Telenor had generally sought to respect human rights and carry out due diligence in accordance with the OECD Guidelines. For example, Telenor included human rights policies in contracts with its vendors and business partners and conducted follow-up. The company also emphasized the importance of stakeholder engagement. However, while Telenor had engaged with Myanmar and international partners, the company had not prioritized engagement with the most vulnerable and severely impacted groups (in this case, the Rohingya).
The NCP recommended:
- For Telenor to prioritize its most vulnerable groups in future stakeholder engagement.
- For Telenor to consider following up with the complainants outside the NCP process with a view to taking a role in remediation.
The NCP also made several general recommendations for enterprises covered by the OECD Guidelines:
- The OECD Guidelines and OECD Due Diligence Guidance call on enterprises to take a role in remediation even if they are not causing or contributing to adverse impacts. Enterprises can, for example, provide information which can facilitate investigations or dialogue.
- The risk of telecommunications infrastructure being used for harmful purposes is now known and must be identified and mitigated in Myanmar and other high-risk contexts.
- In relation to internet shutdowns, the NCP stated: “Mitigation efforts relating to internet shutdowns include repeated and transparent engagement with the authorities regarding the legal framework and shutdown orders, and efforts to keep other opportunities for communication as open as possible during the shutdown.”
- In relation to enhanced due diligence in the context of Myanmar, the NCP stated: “enhanced due diligence calls for identifying the risk of complicity with human rights violations and due diligence with respect to the risk of doing business with the military or entities linked to the military. It may call also for more proactive and regular reporting when it comes to prevention and mitigation efforts concerning risks relating to business relationships. It calls for stakeholder engagement where the most vulnerable and severely impacted groups are given particular attention and are prioritized for engagement.”
- The NCP also recommended enterprises operating in conflict situations take note of the report of the UN Working Group on Business and Human Rights on conflict-affected regions and states, in particular with respect to responding to changing circumstances and ensuring robust stakeholder engagement and grievance mechanisms