"How do companies that sell products that can easily be misused to infringe human rights protect against such misuse, so that that their legitimate sale can continue?"

The globalisation of many multinational companies' (MNCs) marketing chains means their goods are being sold into an ever-wider spectrum of countries, each with its own political, cultural and human rights context. Whilst this is not necessarily a new phenomenon in itself, MNCs are facing newer challenges in terms of stakeholders (including consumers and investors) increasingly making a link between how these products are used by third parties – and the company itself. This is particularly the case where products are misused to violate human rights. In part, this link is being made due to:

• Better consciousness on the part of business and society more broadly, of violations committed abroad due to increased media coverage and access, and identification of company complicity in the courts
• Enhanced understanding of the concept of complicity, which has been clarified by Professor John Ruggie's work, particularly in his report entitled ‘Clarifying the Concepts of "Sphere of Influence" and "Complicity"'
• Awareness on the part of business and society more broadly, that companies are expected to "make sure that they are not complicit in human rights abuses" in line with Principle 2 of the UN Global Compact
• An inability amongst stakeholders (including NGOs, activists etc.) to hold the actual perpetrators to account, leading them to focus on the role of (potentially more accountable) MNCs instead
• Growing focus on ‘brand value' amongst many MNCs, making them more vulnerable to negative media coverage of product misuse – even when it is by third parties

Where such a link is made, the company could face allegations of complicity in the wrongdoing of third parties due to selling them the product in the knowledge that it might be misused to violate human rights. This can present a particular challenge to some MNCs, as many products can potentially be misused to abuse human rights, making it extremely hard to guarantee they will only be used for ‘legitimate' purposes. This challenge is being exacerbated by two key issues linked to corporate expansion into new markets:

• The growing range of countries MNCs are selling into means it is increasingly challenging for companies to maintain strong oversight of the human rights and product misuse risks present in any particular remote location
• Many MNCs are becoming increasingly distant from their end users, due to the expansion of their distribution chains – with an increasing number of ‘intermediaries' between themselves and the final purchasers of their products

To some degree, the ability of companies to prevent the misuse of their products will depend upon the extent to which companies assess the potential impacts of their products, ‘foreseeability' of the risk of misuse – as well as the nature of companies' marketing strategies, which can help to prevent the risk from materialising and/or mitigate it.

The test of ‘foreseeability'

This dilemma focuses only on those products for which the risk of misuse is reasonably foreseeable given the three sets of factors that companies should consider under the UN's "Protect, Respect and Remedy" Framework ("the Framework"), to respect all human rights:

• The context of the country where it is being sold (for example, the Chinese government's historical attitude to freedom of expression and the right to privacy makes it relatively more likely that different surveillance and information communication technologies may be misused in a way that undermines citizens' human rights)
• The human rights impacts of the potential alternative use of the product (for example, law enforcement equipment, such as handcuffs, stun guns and riot batons can easily be misused to illegitimately infringe human rights)
• The ‘risk culture' of the partners or intermediaries with whose help the product is sold (for example, evidence (or reasonable suspicion) that the local seller is likely to ignore the risk that third party purchasers may use a product in a way that undermines human rights)

Company control over sales

With regards to marketing strategies, companies may use a number of means to deliver and distribute their products:

• Direct sales
• Joint ventures or partnership with local sellers
• Use of intermediaries (e.g. franchisees and brokers)

If a company uses direct sales, it can use licence agreements or a sales contract to ensure the legitimate use of its product. Where sales are carried out through ‘third-parties', companies may also use service contracts to commit these third parties to take measures to prevent and/or reduce the risk of product misuse.

Nonetheless, where a company has no restrictions in place regarding the use of their products, they face a higher risk of being perceived as complicit with any human rights abuses committed by the purchaser using their product. Likewise, even if restrictions are in place with the primary purchaser, this will not necessarily ensure that the product is not sold to – and misused – by a secondary purchaser (e.g. in a re-sale context).

In some cases, the type of product and the commercial reality faced by companies may also make it impractical to track the continued use of their products and thus address the problem in an effective way. For example, although knives clearly have the potential to be used for illegitimate purposes, the number in which they are produced, their average value, the wide range of legitimate uses make it all but impossible to place restrictions on relevant value chains or to trace their use.

Challenges presented by the country context

In some countries, products may be misused as a result of national laws, government policies and social practices – i.e. latent contextual issues that the company has little prospect of changing. Where this is the case, a responsible company may be faced with a difficult choice. It may:

• Continue legal sales of the product in that country despite the danger that the product may be used to commit human rights violations, or
• Refuse to do business in that country, and so forgo the revenues that would have been generated through the legal sale of its products there

Following the first course of action could imply that companies owe no responsibility for their actions beyond legal liability. The second course of action may be feasible and in line with a company's ethics code, or it may be unrealistic, as it can severely limit the countries and markets in which companies can conduct business. Failure to sell into certain markets could also be ethically wrong if the product in the majority of its use scenarios offers broader human and social benefits when used in the way in which it is intended.

Considering this, the dilemma for a responsible business is how to best ensure that the legitimate products it sells are not used to facilitate human rights violations – particularly given the commercial, political and ethical constraints that they are likely to face in such situations.

Scope of product misuse: military equipment and other controlled goods

In certain cases, companies will not always have a choice as to who they sell to. For example, many products are subject to state export controls for reasons of geopolitics, security and/or human rights. In such cases, human rights violations arising out of the misuse of such products that have been specifically authorised for export arguably places responsibility on the authorising state rather than the company that sells the product. This is especially the case with respect to weaponry and other military equipment, which is often subject to very tight export restrictions. Furthermore, the very nature of weaponry, which can be used both legitimately and illegitimately to inflict serious harm, makes it something of a ‘special case' compared to other products (including non-military products that are otherwise subject to state controls). For these reasons, the trade in arms is excluded from the scope of this dilemma.

Nonetheless, export controls will not necessarily cover all products, and where they do cover a particular product, this will not necessarily be due to the risks it poses to human rights (i.e., it may be controlled for political or other reasons). This being the case, there will be situations where controlled goods are authorised for sale to third parties that do indeed present a risk to human rights.

As a result, this dilemma does cover controlled products that are authorised for sale to potential human rights violators. This is because, in a sense, the ultimate decision making power as to whether to sell to potential human rights violators – or what conditions are imposed on such sales – still lies with the company, allowing latitude for responsible decision making, which is explored in this dilemma.

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Some of the most common and relevant examples of product misuse include surveillance technology, policing devices and other security equipment, health products and technology, chemicals (such as fertilisers), information communication technology and dual-use products.

Misuse of Surveillance Technology

The right to life and security implies positive obligations on states to ensure that all reasonable measures have been taken to protect people from possible security threats. In many cases, protection includes a range of surveillance technologies such as CCTV, phone, email and Internet surveillance. These technologies have entered into (relatively) common usage in a range of locations.

Examples of the misuse of surveillance technologies include the following:

A 2015 report by Human Rights Watch found that Italian spyware firm, Hacking Team, took no actions to investigate reported abuses of its technology by the Ethiopian government. The company, which trained Ethiopian intelligence agents to hack computers, continued to negotiate additional contracts with the authorities despite allegations that its services were being used to repress critics and human rights defenders. The company exclusively sells its services to governments and has been linked to contracts in Turkey, Bahrain, Egypt and Kazakhstan, among others. Many of these governments are reported to use Hacking Team's technology to intercept the communications of human rights activists, non-governmental organisations and journalists.

• In Iran, the standards-based, lawful interception capability of basic 2G/2.5G mobile networks supplied by Nokia Networks to two local mobile phone operators in 2008 was reportedly used by authorities to illegitimately monitor communications of political dissidents. A ‘monitoring centre' acquired by MCCI from Nokia Networks in 2008 was used to activate the lawful interception and analysis of intercepted data. Three months prior to this being reported, Nokia Networks had exited the monitoring centre business. According to the euobserver.com, on 2 June 2010 Nokia Networks told Members of the European Parliament that the company had learned its "lesson". While emphasising that the sale of the monitoring centre was in compliance with legal rules, including export controls, Nokia Networks publicly acknowledged that prior to providing a monitoring centre to MCCI in 2008, it should have better understood it's possible implications for human rights in Iran
• In the United Arab Emirates (UAE), Blackberry users were prompted by UAE telecoms firm Etisalat to download software that was claimed to improve performance but in fact could allow unauthorised access to private information and e-mails, the BBC reported in 2009. Blackberry maker Research in Motion said in a statement to customers that "Etisalat appears to have distributed a telecommunications surveillance application". It added that "independent sources have concluded that the Etisalat update is not designed to improve performance of your BlackBerry Handheld, but rather to send received messages back to a central server". The update was subsequently identified as an application developed by American firm SS8. The California-based company described itself as a provider of "lawful electronic intercept and surveillance solutions"In China, a large-scale surveillance system was documented in a 2008 report of Citizen Lab researchers entitled "Breaching Trust: An Analysis of Surveillance and Security Practices on China's TOM-Skype Platform."Citizen Lab reported on the system which allows the authorities to pick up and store messages sent through the Skype online telephone and text messaging service. The database held more than 150,000 messages, which included politically sensitive words and phrases for China. Skype is operated in China as Tom-Skype, a joint venture involving US-based auction site, eBay and Chinese company TOM-Online. Citizen Lab said it was "clear" that Tom was "engaging in extensive surveillance with seemingly little regard for the security and privacy of Skype users."
• In 2015, Open Democracy reported that two NASDAQ-listed companies operating in Israel supplied spying technology to secret police services in Kazakhstan and Uzbekistan. Verint Israel and NICE Systems were found to have supplied systems through which security officials could intercept and analyse phone calls and internet data, enabling widespread surveillance of citizens without judicial oversight. Verint Israel is also accused of attempting to facilitate Uzbek security forces in cracking encrypted web traffic, such as access to online banking and emails. Both companies are also reported to provide ongoing training, maintenance and support to security agencies in both countries.

Misuse of policing devices and other security implements

As with surveillance technology, a range of equipment is necessary for the legitimate provision of security. Nonetheless, such equipment can be misused, resulting in human rights violations.

For example, in a study titled "Europe: From Words to Deeds: Making the EU Ban on the Trade in ‘Tools of Torture' a Reality" carried out in March 2010, Amnesty International and Omega Research Foundation alerted the public to the incidents of selling security equipment for law enforcement and detention by European companies to countries whose police and security forces are known offenders against human rights and have made use of such equipment to inflict torture and other ill-treatment.

Thus, the worrying examples included the sale of electric-shock devices to countries, such as Georgia, Mongolia, Pakistan, Moldova, Senegal, Cameroon, and chemical sprays to countries, such as China and India. This has been done despite evidence (particularly from AI Reports) that the police and security forces in these countries had often used the mentioned products for illegitimate purposes.

Misuse of health products and technology

Advanced drugs and medical technology, which on the one hand vital for the realisation of the right to health, also have the potential to be used in ways for which they were not intended to undermine a range of human rights. The following are few examples of misuse which are of concern:

• Drugs: In 2010, the BBC reported, that so-called date-rape drugs were on the rise, according to the UN drug control agency's annual report. These drugs were used to reduce people's resistance to unwanted sexual activity and restricted their ability to remember what had happened later. Some of the substances used also have legitimates uses, including for short-term treatment of chronic or severe insomniacs that are not responsive to other hypnotics, making it harder to keep them out of the hands of criminals. Rohypnol (Flunitrazepam) has attracted particular media attention for its misuse in this respect. Its primary manufacturer is Roche, a Swiss pharmaceutical company.

In April 2017, West-Ward Pharmaceuticals and Fresenius Kabi USA filed a lawsuit in Arkansas to stop the use of their drugs in executions. The companies, which manufacture potassium chloride and midazolam – two drugs used in the execution process – have stated that they oppose the use of their products in executions of prisoners. Despite policies aimed at preventing their drugs from being used in capital punishment, the medicines were acquired by the state, and used in a series of controversial executions carried out in late April 2017. The state refuses to say how it acquired the drugs, though it is suspected that they were provided by an unauthorised seller in violation of the manufactures' contractual terms.

• Physical restraints: Restraint beds can be legitimately used in mental hospitals to suppress the violent behaviour of mentally disabled patients. They are produced by different companies specialising in products for healthcare and long-term care. However, their use to inflict ill-treatment on detainees in prisons has also been reported. In 2015, an inquest at Manchester coroner's court found that inmate, James Ahmed, had died as a result of disproportionate and unlawful physical restraint. This included keeping Ahmed in handcuffs while awaiting medical care for him becoming unresponsive. The inquest found that the actions of the prison guards were in contravention of Prison Service guidance and policy.
• Ultra-sound technology: As described above, ultrasound technology appears to have been used in India to facilitate female-sex abortions, whereas its principal use is in obstetrics and gynaecology. As already noted, products that allow the detection of the sex of an unborn child in a context where female foetuses are likely to be aborted, can have serious human rights implications.

Misuse of Information Communication Technologies

Information Communication Technologies (ICT) cover a broad range of technologies that can facilitate access to and sharing of information and ideas and make the presentation of information user-friendly. However, when misused, ICT can lead to various human rights violations. This concern was particularly expressed by UNESCO in its Report "Ethical Implications of Emerging Technologies", which looks into the ethical, legal and societal implications of different technological choices.

Examples of the misuse of ICT to restrict human rights include:

• Encryption technologies: Data encryption technologies produced by software industry leaders, such as AVG, Cisco Systems, Dell, HP, IBM and others are legitimately used to protect commercially sensitive information and communications. However, the functionality of such technologies can be easily abused, including by criminal groups looking to maintaining privacy of communication. In March 2017, for example, the UK Home Secretary, Amber Rudd, accused some technology firms of giving terrorists ‘a place to hide.' Rudd said that it is ‘completely unacceptable' that internet companies enable terrorists to communicate in secret, and that there is a wider responsibility among companies to work with law enforcement to intercept extremist material.
• Biometrics: Biometrics is a technology that measures and analyses unique characteristics of individuals, including both physical and behavioural. Examples include DNA, facial patterns and fingerprints recognition software. Industry leaders in advanced fingerprint and palm print technology include companies such as Cogent, L-1, Motorola, NEC and Sagem. On the one hand, this technology can help governments to limit travel by criminals or suspected dangerous persons. On the other, it could enable building a complete profile of a person, which could be used for illegitimate purposes
• Radio frequency identification (RFID): RFID is a technology that enables data exchange from a small wireless device, called an RFID tag, which is equipped with a computer chip and antenna. It could be useful in the area of product tracking to manage supply chain and inventory. However, the use of RFID tags on moving objects – when embedded in the uniforms of employees – can lead to allegations of breach of privacy of employees. For example, in 2005 Cisco began selling RFID servers that work with RFID chips embedded in uniforms to track employee whereabouts. However, according to v3.co.uk, this technology was criticised by Liberty, who claim that "… [it] undermines employee privacy even further and reinforces the slur that workers cannot be trusted".
• Computer hardware: In January 2010 Voice of America News reported that a US federal district court allowed a claim against IBM and Fujitsu ICL to proceed under the Aliens Tort Claims Act. The companies are accused of supplying technology which the South African authorities used to create "passbooks" for the black population that were used to control their movement, employment and residence. According to the legal counsel for the victims, as reported by CorpWatch, "apartheid could not have been maintained in the same manner without the participation of the defendants". According to Telegraph, IBM contended that it was not the company's place to tell clients how to use its products.

Misuse of chemicals and fertiliser

Certain chemical products, including those intended for agricultural use, can – if used in illegal or inappropriate ways, result in human rights violations. Although a wide range of chemicals are subject to legal restrictions, this is by no means always the case.

For example, ammonium nitrate fertiliser is used for raising crops. Nonetheless, it can be easily adapted in order to render it explosive. In 2009, globalsecurity.org reported that ammonium nitrate fertiliser is used to make about 95% of bombs in Afghanistan. In 2005 this type of fertiliser was also reported by the National Counter Terrorism Security Office (NaCTSO) of UK to have been used in a number of terrorist bombings, including in Bali in 2002, Oklahoma City in 1995 and New York in 1993.

Misuse of civilian products in a security or conflict context

A range of ostensibly civilian or dual-use products can be used in conflict and security enforcement contexts to violate human rights. Dual-use products are goods, software or technology that can be used for both civil and military applications. Although most developed countries have export controls on certain types of dual-use products, some will not necessarily be subject to any export restrictions (see also Doing business in conflict-affected countries).

Common examples of misuse in this category include:

• Transport equipment (for example the use of civilian-spec vehicles by state actors to assist in security or military operations that result in human rights violations)
• Telecommunications equipment (for example the use of satellite telephone by illegitimate armed groups in remote areas to maintain operational integrity and to assist in operations that result in human rights violations)
• Engineering equipment (for example the use of earth moving equipment to destroy civilian property)
• Other specialised electronic equipment (for example civilian satellite navigation equipment used by military forces to coordinate/enhance operations that result in human rights violations)
• Computer hardware or software used in manufacturing of military goods

Examples of the misuse of ostensibly civilian or dual-use items include the following:

An electrical cattle prod is a handheld device commonly used to make cattle or other livestock move by administering a relatively high-voltage, low-current electric shock. However, there have been a number of reports alleging its use as a tool of torture. For example, on 28 April 2009, HRW sent a letter to the attention of the President of the United Arab Emirates, expressing concern about the torture of Mohammed Shah Poor allegedly carried out by a member of the royal family police officials – including the use of an electric cattle prod.

• Although arms are not covered in the scope of this dilemma, the sale of weapons to regimes with poor human rights records highlights the increasing reputational risks defence companies face. In 2016, media reports highlighted that UK sales of arms to governments with poor human rights records had increased by over £3 billion. According to the Independent, British companies sold weapons to Saudi Arabia, Burundi and Bahrain in 2015, all of which appear on the Foreign Office's list of Human Rights Priority Countries. The Observer also reported that in 2016, a British-made cluster bomb dating back to the 1980s was found to have been dropped on a village in Yemen, despite the fact that the use and supply of such weapons is prohibited by international law. In 2017, the government has faced further criticism for permitting the sales of weapons by British companies to Venezuela, where violent clashes between pro and anti-government protesters have killed more than 163 people.
• In its 2007 Citizenship Report, GE noted that despite previous statements to the contrary, one of its recently acquired business units – GE Sensing & Inspection Technologies – had been supplying a sensor for use by a US manufacturer of a ‘next-generation' cluster weapon. These weapons had in turn been supplied to the US military. The sensor had originally been designed for use in cardiac diagnostic and corrective procedures – and is in widespread medical use. GE noted that of more than 250 million sensors produced each year, only 15,000 were used for cluster munitions. In light of the discovery of these sales, GE said it would not accept any new orders for sensors to be used in cluster weapons and would not renew the contract with the customer for this product. GE noted that the discovery of these sales highlighted the data-gathering challenges faced by a company of its size and complexity. The company has since released a statement stating that it does not manufacture, assemble, sell or service cluster bombs, land mines or nuclear weapons, including component parts required for such products.

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Real-world examples

The following examples show the types of challenges that companies may face when selling different products into environments in which human rights violations are common.

Change in India's sex ratio puts the focus on the sale of ultrasound technology by General Electric (GE) and other companies

A 2015 paper entitled "Missing Girls: Ultrasound Access and Excess Female Mortality," highlights the use of ultrasound technology in India in selective abortions – with reduced numbers of female babies being born. The availability of technology to detect the sex of an unborn baby has reportedly facilitated the practice of female sex-selective abortions. Despite relevant legal protections, prejudice and discrimination against women is common in India. Males are often viewed as wealth earners during their life. By contrast, having a daughter is often seen as a financial burden due to the practice of dowry payments.

Cisco reportedly selling surveillance technology to China

An internal document by Cisco engineers entitled "Overview of the Public Security Sector," leaked to reporters on the eve of a US Senate human rights hearing in 2008, revealed that the company's technology has been used in the building of China's ‘Golden Shield' project. The ‘Golden Shield' Project was developed to monitor and screen Internet usage by all Chinese citizens.

The misuse of Cisco's technology puts the company in a difficult position. An internal Cisco presentation showed that the company was aware that one of Golden Shield's stated goals was to "combat ‘Falun Gong' evil religion and other hostilities" (see Dilemma on Freedom of Religion). However, a Cisco statement on the dilemma (contained on its website) refers to the multiple functionality of the technology, which can easily be misused. As Cisco has stated, the functionality of the technology allows for the illegitimate violation of people's rights to privacy, freedom of expression and religion may be the same functionality that allows libraries and corporate network administrators to legitimately block questionable sites. Thus, the company has not admitted to knowingly selling the product to intrude on the rights of Chinese citizens, but rather has implied its misuse by the Ministry of Public Security.

A February 2010 list of the Electronic Frontier Foundation (EFF) entitled ‘Seven "Corporations of Interest" in Selling Surveillance Tools to China' includes Cisco as one of the companies that continued to sell surveillance technology to the Chinese government and related entities. EFF admitted that there was no absolute evidence that the companies on the list were indeed fostering repression in China. However, EFF believed that news reports on the human rights situation in China, as well as some that include admissions of some level of involvement from company officials, gave a sufficient basis to question the company's sales. A June 2017 report by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression highlights that a case against Cisco is pending before US courts in relation to Golden Shield.

Human rights concerns raised over the selling of drones by US companies to domestic and foreign authorities

In April 2012, the meeting of the first international drone summit in Washington DC highlighted the concerns of national and international human rights NGOs over the provision by US companies of drones to domestic and foreign state authorities, especially regarding the lack of adequate legal and corporate regulation of their use. Particular focus was placed on Texas-based Vanguard Defence Industries, one of leading companies in the area. Vanguard produces both weaponised and surveillance drones that are known to have been used for anti-narcotics and anti-terrorism operations by authorities in the US, South America and the Middle East.

Several human rights organisations have criticised the use of drones in both military and domestic law enforcement. For example, Washington-based think tank, the Center for International Policy (CIP), along with the American Civil Liberties Union (ACLU), has claimed that US domestic privacy laws are not sufficiently robust and comprehensive to ensure the use of drones in the US in compliance with human rights norms. In April 2012, following a Freedom of Information Act request by the Electronic Frontier Foundation, the US Federal Aviation Administration released data concerning the launching of drones and spy planes from at least 63 locations within the country, raising concerns over the potential for covert surveillance of residential areas.

Vodafone ‘forced' to send pro-government text messages to users during 2011 Egyptian revolution

In February 2011, during protests in Egypt against the rule of President Hosni Mubarak, multinational telecommunications company Vodafone claimed it was ‘forced' by the government to send propagandistic text messages to its users in the country, in support of Mubarak and his government. The messages included calls by the Armed Forces for citizens to "…confront the traitors and criminals and protect our people and honour".

Vodafone, in a statement issued on its website, claimed that the Egyptian government was able to use its emergency powers under the Telecommunications Act to force mobile network providers to disseminate such messages. The company also claimed that it had not written the messages and was unable to engage with the government as to their content. The statement emphasised that all messages sent in this context should be "…transparent and clearly attributable to the originator."

Companies operating in countries that may be deemed to have an oppressive government must be aware of any schemes of legislation which allow authorities to interfere with or manipulate company services in order to repress opposition. In such scenarios, the risk that companies may be then implicated in human rights abuses linked to political repression will likely be increased.

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Legal risks

In general, MNCs are relatively unlikely to face primary legal liability for human rights violations arising as a result of misuse of their products. This is due, for example, to:

• The fact that any harm will necessarily be committed by a third party
• Basic legal concepts that focus on the perpetrator rather than the objects used to commit violations
• The multiple uses to which different products can be applied (i.e. both legitimate and illegitimate)
• The fact that companies will have generally complied with all legal requirements when selling their products

Where liability can still arise it could be generally one of the two types: civil or tort (for complicity in inflicting damage resulting from a wrongful act) or criminal (where countries recognise the criminal liability of companies, for complicity in the commission of a prohibited crime or an offence).

Where liability is imposed on companies, it can arise under national laws prohibiting the misuse of particular goods, as liability may extend not only to the end user but also to manufacturers and distributors. For example:

• India and China have both outlawed the use of ultrasound for gender selection abortions. In India, liability potentially extends to manufacturers and distributors. According to the Wall Street Journal, this allowed prosecutors in the city of Hyderabad in India to bring a criminal case against the GE joint venture with Wipro – an Indian outsourcing partner of GE, as well as Erbis Engineering Co., the medical-equipment distributor in India for Japan's Toshiba Corp. The district government alleged that the companies knowingly supplied ultrasound machines to clinics that weren't registered with the government and were illegally performing sex-selection tests. The penalty is up to three months in prison and a fine of 1,000 rupees

Some states have also committed themselves to imposing liability on sellers of products that can be misused to engage in illegal activity as part of their international obligations. For example:

• Articles 6 and 11 of the Council of Europe Convention on Cybercrime of 2001 call on states to criminalise the sale of devices that can be misused to interfere with confidentiality, integrity and the availability of computer data. Article 12 specifically calls on signatories to adopt legislative measures to provide for corporate liability for committing offences covered by the Convention. It entered into force on 1 July 2004. As of December 2016, 52 states have ratified the convention, including non-Council of Europe members Australia, Canada, Japan and the US. Articles 3, paragraph 1 (c) and 2 of 2002 Optional Protocol (OP) to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography call on each State party to ensure not only that producing, distributing, dissemination, importing, exporting, offering, selling or possessing child pornography are fully covered under its criminal or penal law, but also that the same shall apply to "complicity or participation" in any of this acts. Where a signatory country has reflected this in its laws, it could arguably be possible for courts to impose liability not only on those who engage in child pornography, but also manufacturers and sellers of devices that facilitate access to images of child abuse. As of May 2016,173 countries are parties to the Protocol, including Austria, Belgium, Canada, France, Germany, UK and the US

Companies can be found complicit in human rights violations committed by others when they knowingly assist or benefit from the human rights violations. The standard for knowledge could both be an actual knowledge or what a company ‘should have known' under the circumstances.

Most cases of complicity in human rights violations as a result of product misuse are likely to require manufactures and sellers of products to anticipate reasonably foreseeable misuses of their products. The degree of knowledge required from manufacturers and/or sellers is both an actual knowledge and what a manufacturer and/or seller should have known under the circumstances given the country context where the products are sold, the business relationships of the company, and the human rights impact of the product itself.

Allegations of complicity will arguably be stronger when the product misused to inflict human rights violations has a limited number of applications or is not widely circulated (but rather subject to a certain export control or licensing criteria). For example, it would arguably be easier for the company to identify the risk of special security equipment being misused to inflict torture rather than plastic pipes or bottles, which are also commonly used by security officers and prison guards in emerging economies as instruments for torture.

The case of British companies supplying specialist equipment and chemicals to Syria is an example where the risk of product misuse was potentially foreseeable. Recent media reports highlight that chemicals sold to the Syrian government are likely to have been used in the production of nerve agents. Between 2004 and 2010, five British companies were given licences to export chemicals to Syria, some of which could be used to produce sarin - a highly toxic substance which has been used in number of chemical attacks in the country. These licences were subsequently revoked on the grounds that the exported chemicals could be used to manufacture weapons. Although the exports pre-date the conflict in Syria, the case highlights the need for companies to be vigilant about its exports, and conduct adequate due diligence to assess the political situation within importing countries. Simply doing business in countries or places with poor human rights record is not generally considered a strong basis for claims of complicity. This is especially due to the lack of the link of causation between a particular business activity and a certain human rights violation.

However, where the company appears to profit from the misuse of its product – i.e. because its misuse creates a significant sales market– and where the violation of the human rights would not be possible without this product (or at least to such an extent), this may substantiate allegations of company complicity in those violations.

Generally, in most of the cases sellers will have neither control nor influence on the end users or re-sellers. Where business is carried on by means of a contract or a licence, however, there may emerge a relationship of control over the end user or an actor in a distribution chain. Where companies fail to use this control to ensure against the risk of the product misuse by the purchaser or the risk of the intermediary selling it to a controversial user, this could be used to substantiate the allegations of company's complicity in the wrongdoing.

In addition, companies can engage in sales through their agencies or by operating a branch or a sales subsidiary in a country where the products are sold. The control they have over that entity can make allegations of complicity in the wrongful acts of that actor stronger or weaker. This can also increase or decrease the exposure of the parent company to the legal risks created by the actions of its branch or a sales subsidiary.

For example:

• Where business is carried by means of an agency or a company branch or via a company representative, their actions will be generally directly attributable to the parent company
• Where business is carried on by means of a sales subsidiary with a separate legal personality, a potential wrongdoing on the part of the purchaser would potentially result in the direct liability of the sales subsidiary rather than the parent company

In some cases, however, this legal separation can be ignored to allow the liability of the sales subsidiary to pass to the parent company. The criteria applied to allow for the liability to pass in such way are subject to the practices of the national legal system of the home country of the company.

Though rare, legal liability could extend to cover both corporate liability and personal liability of directors/managers of the company. The criteria applied to allow personal liability of directors are subject to the practices of the national legal system of the home country of the company.

For example, UK courts are generally unwilling to allow liability for the acts of a company to pass to managers or directors. However, in cases where the directors personally control the company and induce its tortious acts, and where the company is really the vehicle for the director's personal acts, the separation between the company as an entity and its directors could be ignored to allow personal liability.

In the case of Doe v. Unocal filed under the US Alien Tort Claim Act case, the court noted as a general principle that both corporations and their executive officers can be held responsible for complicity in human rights violations. The suit was initiated by the Burmese villagers against Unocal who alleged that Unocal was complicit in various human rights violations carried out by the Myanmar Military, including forced labour, murder, rape, and torture, in connection with the Yadana gas pipeline project.

Reputational risks

Even where companies do not face legal action, allegations of complicity can still expose them to a range of negative impacts.

Risks can be of a short-term nature (e.g. operational disruptions as a result of refusals to continue supplying the products to particular countries or end users due to allegations of their misuse) or cause extended difficulties (e.g. shareholder pressure resulting in the review of the company's strategy or sales policy).

Such risks can include:

• Consumer initiated boycotts resulting in reduced sales
• Divestment by ethical and mainstream investors resulting in reduced access to capital
• Negative press and activist campaigns resulting in brand erosion
• Loss of social licence to operate resulting in community animosity and higher costs
• Loss of political licence to operate resulting in non-cooperation by the government and diminished future business opportunities

A prime example of the risk of legal proceedings spurring bad publicity and consumer boycotts, even when those proceedings are discontinued or get settled out of court, can be found in campaigns launched against US-based company Caterpillar. The company was accused of selling bulldozers to Israel knowing that they were being used to destroy Palestinian homes. According to the report of the Palestinian Center "War Crimes Litigation in U.S. Courts: The Caterpillar Case", these home demolitions were in violation of national and international law. The tort claim against Caterpillar in the United States and later another civil lawsuit, this time against the Israeli Defence Ministry, have attracted attention and caused public outrage. The fact that the US government provided funding for the purchase of Caterpillar bulldozers by Israel pre-empted the jurisdiction of the US court to decide on the merits of the case. The civil lawsuit is still in progress.

Different campaigns have been initiated against the company, including those by the Palestinian Grassroots Anti-Apartheid Wall Campaign and the HRW and AI supported consumer boycott of Caterpillar goods.

Likewise, the case of Cisco's, where it was alleged that the company's software was misused in China to impede the freedom of expression, shows how concern about share value as well as ethical concerns may result in disinvestment by ethical and mainstream investors. Ahead of Cisco System's Annual General Meeting in November 2009, a group of 17 investors representing over 24 million shares (US$580 million) used a shareholder proposal,58 led by Boston Common Asset Management, to urge the company to adequately manage human rights related risks in its operations The move, introduced for a fifth successive year, was partly prompted by the fact that Cisco's general counsel has been called on two occasions to testify before the US Congress to describe the company's alleged role in limiting freedom of expression in China (where it has investments of US$16 billion) and elsewhere.

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The UN ‘Protect, Respect and Remedy' Framework for Business and Human Rights provides guidance on how to protect individuals and communities from corporate related human rights harm.

The framework is comprised of three key principles:

• Protect: The state duty to protect against human rights abuses by third parties, including business;
• Respect: The corporate responsibility to respect human rights; and
• Remedy: Greater access by victims to effective remedy, both judicial and non-judicial.

The framework states that in addition to complying with national laws businesses have a responsibility, in the context of the countries where they operate, to respect human rights through their own business activities and through their relationships with third parties – such as business partners and entities in their supply chains. To meet this responsibility, the framework notes that businesses should engage in human rights due diligence and specifies the main components of the process:

Policies: Including a human rights policy containing broad commitments, supported by more detailed guidance in specific functional areas

Impact assessment: Including assessments that explicitly reference internationally recognised human rights and are used by companies to avoid potential negative human rights impacts on an ongoing basis

Integration: Including the embedding of respect for human rights throughout a company

Tracking performance: Including regular updates of human rights impact and performance

The Guiding Principles for the Implementation of the UN "Protect, Respect and Remedy" Framework aim to provide "concrete and practical recommendations" about how businesses can operationalise their responsibility to respect human rights. According to the Guiding Principles, the responsibility to respect human rights requires responsible companies to:

• Implement a human rights policy
• Apply human rights due diligence
• Provide for remediation

The UNGPs apply to all States and to all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure.

The UNGPs have experienced widespread uptake and support from both the public and private sectors, and numerous companies have publicly stated their commitment to the Guiding Principles. The UN Guiding Principles Reporting Framework is also used by companies to report on how they respect human rights.

Companies can seek specific guidance on this and other issues relating to international labour standards from the ILO Helpdesk. This aims to help company managers and workers understand the ILO approach to socially responsible labour practices and to assist in the development of good industrial relations.

The UN Global Compact has developed a Self Assessment Tool on Product Stewardship to assist companies in confronting the human rights challenges that may arise in the process of producing and marketing goods. The tool consists of a number of questions that companies are invited to answer to improve existing policies and systems, build staff awareness, engage subsidiaries, suppliers or other stakeholders, improve internal and external reporting. This could guide companies as to the actions to be taken to prevent and/or mitigate the risk of the product misuse.

Actions for responsible business might include:

1. Adopting a product misuse policy

To prevent or mitigate the risk of product misuse, a company could consider establishing a specific product misuse policy committing the company to, for example:

• Abide by relevant national laws
• Where national laws are below international standards to follow higher international standards
• Design products (where practicable) in such a way that their potential for misuse is minimised
• Carry out due diligence on customers to a degree that is commensurate to the risk of misuse
• Where appropriate, carry out an assessment of the impact of the product, the company's commercial relationships and the context in which products are to be used
• Where appropriate, use terms of sale to maintain a degree of control over the use of a product
• Where practicable, provide for ongoing monitoring of the product's use
• Address complaints of the product misuse as they arise
• Regularly review the policy and supporting procedures as prompted by new concerns

As an alternative, companies might consider incorporating clauses to deal with product misuse in their pre-existing human rights policy. Any policy aimed at addressing product misuse should be supported by relevant implementation mechanisms to ensure that its provisions are given real effect.

2. Assess the context in which a product is being sold

To prevent and/or mitigate the risk of product misuse companies might consider the following set of factors:

Impact of the external environment

• Marketing or sales of a product are illegal
• A product may fall into the category of prohibited products because of possible alternative uses
• There are restrictions placed on the sale of particular products to certain countries or end users
• There is a history of product misuse in a country to which the product is being sold by companies or by a certain group of potential end users

Impact of the product

• The potential impact of the product on different human rights in the country where it is sold, when used as intended
• The potential impact of the product on different human rights in the country where it is sold, if misused

Relationships (business partners, entities in a distribution chain, end users)

• There is reason to believe that business partners can sell a product to the country or to the end user with a record of having misused it in the past
• Business actors involved in channelling the product to a country of sale or an end user do not have policies and procedures in place to minimise the risk of product misuse
• Where the investigations listed above do not identify any risks, there are still reasons to believe that certain business partners might sell the product to end users who might misuse the product

Companies can address each of these issues by reviewing the following:

• Relevant laws, regulations and policies of a country to which a product is being sold to establish whether those could lead to the product misuse
• Credible human rights reports on a given country that highlight incidents of misuse of different products for impeding human rights
• Relevant mass media news that could point to incidents of misuse of particular products in certain countries or by certain potential purchasers
• Evidence of a business actor in a distribution chain having management systems in place to mitigate against the risk of product misuse
• Evidence of an end user being eligible to purchase a product (e.g. a certificate of registration with certain authorities that would prove that the end user can legitimately use the product)
• Records of past experience of sales to a particular country or an end user or with a particular business actor in a distribution chain that could point to whether there could be any concerns if the sales to that country or through this particular actor continued

In designing a human rights impact assessment (HRIA), a company may wish to consult existing guidance documents, such as the Guide to Human Rights Impact Assessment and Management, produced by the International Finance Corporation (IFC), UN Global Compact and International Business Leaders Forum. The guide provides companies with a "process to assess their business risks, enhance their due diligence procedures and effectively manage their human rights challenges." It also directs users through different stages of the impact assessment process, including Preparation, Identification, Engagement, Assessment, Mitigation, Management and Evaluation.

Businesses may consider providing special training to sales personnel. By the end of this training, sales personnel should be able to carry out the necessary assessment of the context in which a product is being sold – and have a clear idea of how this should inform the decision to sell.

3. Internal control and oversight systems

Know your customer procedures

‘Know your customer' (or ‘know your client') (KYC) procedures can be used to screen potential and existing customers to establish whether they are likely to misuse a product. For example, company data records on a potential or an existing customer could be checked against the reference lists of reputable relevant organisations, like the Dow Jones Watchlist, which helps to screen entities and persons against government sanction lists.

In addition, the company may consider developing its own product tailored list of risk entities or countries based on the results of its due diligence, which will be constantly updated. A company may consider – subject to resources, the level of risk exposure it is prepared to accept, and the diversity of its client base – using a specialised screening software. For example, Datanomic (recently acquired by Oracle), a provider of customer data quality software, offers screening against both commercial and regulatory/government watch lists, sanctions lists and politically exposed person (PEP) databases. Leading diamond company De Beers uses this software for the systematic screening of its supply chain for sanctioned entities to ensure the traceability of diamonds.

Product tracking

Companies might consider employing measures to track the delivery of sold products until they have reached their intended destination or user, where feasible, such as using radio frequency identification (RFID) technology.

This technology enables data exchange from a small wireless device, called an RFID tag, which is equipped with a computer chip and antenna. It could be useful in the area of product tracking to manage supply chain and inventory.

Another way of tracking could be following up with the purchaser via phone calls or email/post correspondence to receive confirmation of the delivery.

Where appropriate, offering routine installation and technical training on how to use the product as part of a sale package would be another (sensitive) means of tracking the final destination of a product.

Keeping detailed records on the sales at all times could be equally useful to track the product.

4. External control and oversight systems

Terms of sale

Depending upon its particular circumstances, a company may use its terms of sale to maintain a degree of control over the eventual use/distribution of its products.

Where sales are carried out by means of a contract or a licence – or where a company engages actors other than itself in marketing and sales – special contractual provisions can be used to maintain this control.

These clauses can be used, for example, to:

• Commit a customer or an intermediary to not use/sell the product, or cause it to be used/sold for purposes other than it was originally intended, if this might result in human rights violations
• Commit a customer not to re-sell the product unless approval is granted and relevant conditions are attached to the re-sale contract
• Enable similar conditions to be imposed on secondary buyers where products are re-sold
• Allow the selling company to refuse to service equipment or upgrade it, if there are reasonable grounds to believe that it has been or could be misused (e.g. if special conditions attached to the licence agreement had been broken)

If products are sold via an agency, a branch, or a sales subsidiary of a company, relevant legal agreements may include special clauses to commit them to take all reasonable measures to ensure products do not end up being misused with negative human rights implications. Evidence that such entities have the necessary skills and capacity to carry out due diligence, and to implement different policies and procedures, would be crucial.

Where a company does not have any control or influence over the end user, it may still consider adjusting its sales strategy so that the company has stronger control over actors involved in sales and/or end users. For example, the company may prefer carrying out sales on the basis of a contract/licence or through its own entities rather than untraceable wholesales via intermediaries.

Where sales are facilitated by brokers, companies may find it useful to:

• Employ the KYC procedure to screen brokers/franchisees to establish whether any of them is likely to sell the product to an end user who may misuse it to commit human rights violations. (for more details on the KYC procedures see above)

• Develop selection criteria for sales transactions that would guide brokers as to the eligibility of a country or an end user to purchase a product. For example, a history of misuse by a potential customer should result in a company considering refusal of sale or the imposition of strict contractual controls

End user monitoring

Ongoing monitoring of end users, where feasible, could help to ensure that they still meet the requirements for the procurement of particular goods. For example, monitoring could be done of the following:

• Whether there have been any complaints about the misuse of a product by a customer (i.e. received through the company's grievance mechanisms)
• Whether there are any media reports suggesting product misuse by a customer
• Whether changes in country context (as reported in the human rights reports by credible organisations) point to the potential of the product misuse

In addition, and where practicable, companies can schedule regular audits to inspect the use of the product on the spot by combining them with visits to service or upgrade equipment.

5. Grievance mechanisms

Companies might consider the establishment of a grievance mechanism to address complaints of misuse. Subject to a company's resources, an officer can be appointed to specifically deal with the issue of product misuse. Subject to the nature of the specific problem (and depending on the degree to which a company has control over third-party sellers and/or end user), remedies could take the form of:

• The enforcement of relevant conditions included in the terms of sale/licence terms (for example, retraction of licence, ending of business contract etc.)
• The tightening of terms of sale/licence terms to mitigate the risk of misuse with future purchasers, where possible
• Alteration of the design of the product to minimise the risk of misuse, where possible
• Refusal of further sales, particularly when there are reasonable grounds to believe that, despite all precautions, goods may still be misused to violate human rights. When making such a decision, it will be important to balance the costs of disengaging from particular markets and users, against the human rights benefits that such products may still deliver.

In addition, a telephone ‘hotline' or a complaints box can be supported by companies as mechanisms for receiving grievances.

6. Altering product design

Companies might consider altering the design of their products to mitigate the risk of misuse, whilst at the same time preserving its ability to be applied for its intended use. For example, the shutter noise of the camera applications in iPhone 3G phones sold in Japan has been designed so that they cannot be muted. This was done in order to ensure that users could not take sexually intrusive pictures of others without the subjects of such pictures being aware of it.

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Definition

For the purposes of this dilemma, product misuse is defined as the use of a product for a purpose other than its intended application and that leads to human rights violations.

This is different from the issue of product liability. The latter is the area of law in which manufacturers, distributors, suppliers, retailers and others who make products available to the public are held responsible for the injuries those products cause in the process of their intended (or reasonably foreseeable) use. This is usually due to one of three main reasons: a manufacturing defect, a design defect, or a failure to warn about non-obvious dangers that could arise out of the use of the product.

This dilemma does not cover products that are specifically designed to bring about human rights violations. Nor does it cover situations where the damage done with the use of these products is due to a manufacturing or a design defect – or a failure to warn about the dangers of using it. Instead, it is the functionality inherent in many products that allows their application beyond their intended use, and which is sometimes used by some purchasers to impede human rights. The harm done through the product misuse is usually to third parties and is intentional. This is in contrast to product liability, where the harm is usually sustained by the purchasers/end users themselves or done to third parties with no such intention.

High risk products

The following examples aim to set out some of the types of products that pose particular risks of misuse by end users:

Surveillance technology

The positive actions expected of states to protect the rights to life and security can justify the lawful surveillance of certain activities or certain people, like terrorist suspects for example, by public authorities – as well as the procurement of the required technology for these purposes. In a June 2017 report, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression noted that states drive most surveillance, often relying on the assistance of private actors. However, when surveillance technology is misused it can impede on particularly, the rights to privacy, and freedom of opinion and expression that are protected under international law. Depending on the circumstances of each case the illegitimate use of the equipment could further impact on the right to respect for family life, home and correspondence. And if followed by arrests and detentions, it can lead to further violations of the right to liberty.

Though the right to hold opinions cannot be restricted in any circumstance, the rights to privacy and freedom of expression are not absolute: derogations from those rights are allowed in cases of public emergency and to the extent strictly necessary under the circumstances. The right to freedom of expression does not extend to cover propaganda for war and advocacy of national, racial and religious hatred, where it constitutes incitement to discrimination, hostility or violence. These rights are also subject to certain other limitations, which shall be:

• Provided by law
• Necessary in a democratic society to achieve certain aims
• Proportional to the aim to be achieved

Among the aims listed by different international instruments with regards to the freedom of expression are the following:

• Respect of the rights or reputations of others
• The protection of national security or of public order
• Public health or morals

The HRC Draft General Comment No. 34 clarifies the limits of justified restrictions to the right to freedom of expression for aims set out above. For instance, it is not generally appropriate for laws intended to protect national security interest to impose restrictions on the release of, or access to commercial, banking and scientific information. This may in fact be attempted at by states under the pretext of protecting national security.

Where the first two criteria are met, the fact that the aim (when one of the list) could have been achieved by less extraneous measures, will still lead to finding of the violation of the right.

The Human Rights Committee has further clarified that although reservations to freedom of expression are allowed in certain cases, a general reservation to this right would be incompatible with the object and purpose of the ICCPR. In addition, reservations to this right cannot take any form.

Policing devices and security implements

As shown above, the rights to life and security impose certain positive obligations on the state. The availability and procurement of legal policing devices and security implements can be incidental to these purposes and thus sales of such products can be justified under international human rights law. However, the absolute prohibition on torture, which applies in all circumstances and to all states and allows no derogations, means that law enforcement equipment should never be used for inflicting torture.

Companies need to consider this, including in cases where a loophole in the export control rules (e.g. a vague definition of a ‘torture equipment or product') or their weak enforcement would not prevent the sale of particular goods to the end user who is most likely to use them to inflict torture.

Health products

Health products can facilitate the fulfilment of the right to health. However, their misuse can lead to violations of various human rights, including the right to be free from torture. As discussed above, this right to be free from torture is absolute and allows no derogations or limitations. As a result, this will arguably require a company producing certain health products to carry out intensive due diligence in order to prevent the risk of its product being misused to inflict torture.

Misuse of certain health technology, like ultra-sound, can also impede on the right to be free from discrimination on basis of sex. Non-discrimination rules are laid down and elaborated in various international documents on human rights. If companies fail to take reasonable measures against the misuse of technology that facilitates sex-selective abortions, they may be considered complicit in violations of the right of non-discrimination.

Misuse of civilian goods for military purposes

The availability of civilian goods can equally facilitate the fulfilment of various human rights. For example, heavy engineering equipment can be instrumental in the promotion of the right to adequate housing. However, the misuse of such equipment can also be used to undermine human rights – including the right to property and the right to life. The example of the misuse of Caterpillar's D-9 bulldozers by the Israeli military (see above) provides an example of this.

Although the rights to life and property are protected under international human rights law, they are not absolute. Restrictions on and derogations from these rights are allowed in certain circumstances.

In times of war, the rights to life and property are specifically protected under international humanitarian law. The pre-emptive or indiscriminate destruction of homes, based solely on their location, and where these actions are not required by military necessity, are not justified under international humanitarian law. In addition, international humanitarian law strictly prohibits intentional attacks on civilians.

Information Communication Technology (ICT)

Advanced ICT technology can facilitate the right to freedom of expression by easing the process of seeking, receiving and imparting information. However, other human rights may be negatively affected in the same process.

The example of encryption technology (see above) brings to light potential infringements of the right of a child to be protected against sexual exploitation that misuse of this technology can lead to. This right of a child is firmly enshrined under international human rights law and allows no derogations.

As the breach of this right is not possible or at least to such an extent without the mentioned software, manufacturers and/or sellers may be asked to engage in an intensive due diligence to ensure that the technology is used for legal and legitimate purposes.

Human rights at risk

There are no binding international instruments that oblige companies to protect persons against product misuse per se. Nonetheless, there is a range of international human rights standards that are of potential relevance to this dilemma, including those relating to:

Right to life (UDHR, Article 3 and ICCPR, Article 6): In very serious cases, products can be misused (both in a military and non-military context) to kill or facilitate killings. For example, where communication products enable rebel groups to carry out military campaigns more effectively, they are arguably playing an (indirect) role in undermining this right.

Right to privacy (UDHR, Article 12 and ICCPR, Article 17): In some cases, products can be misused to track peoples' whereabouts, interfere with the privacy of their homes or correspondence even when this is not prompted by the requirements of the job and/or security measures. For example, where tracking technology enables employers to follow employees' every step or where surveillance technology is used to spy on citizens for reasons other than the security concerns, the misuse could give rise to violations of the right to privacy.

Right to freedom of expression (UDHR, Article 19 and ICCPR, Article 19): In countries with oppressive regimes products can be misused to suppress the expression of views and opinions that are not aligned with official ideologies or policy. For example, both surveillance and ICT technology can be used to block broadcasts, articles or other communications – or to block access to information in general.

Right to be free from torture (UNDH, Article 5 and ICCPR, Article 7): In very serious cases, products can be misused to inflict excess pain on people with the purpose of extracting information or simply to punish them. For example, where the policing and security equipment are misused to achieve these aims they are directly undermining this right.

Right to freedom of association (UDHR, Article 20 and ICCPR, Article 22): In countries with oppressive regimes, certain products, such as surveillance or ICT technology, can assist in the identification of people with views different from that of the ruling party. As a result, it can equally undermine the abilities of the activists to meet, communicate and organise as a group.

Right to liberty and freedom from arbitrary arrest (UDHR, Articles 3 and 9 and ICCPR, Article 9): Similarly, in countries with zero or low tolerance to political views other than that of the government, active members of opposition parties may be subject to arrest in order to minimise their chances of spreading their views. In certain cases, electronic surveillance equipment can be misused in order to identify those political activists who the government wishes to detain.

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