II. Rights and protections
Business enterprises are reluctant to abandon their personnel, their operations and their capital investments when an armed conflict breaks out around them. A withdrawal of business enterprises from conflict zones may also be undesirable: countries struggling to overcome the torments of armed conflict usually need economic development and private investment. The rules of international humanitarian law that protect civilians and civilian property prohibit attacks against business enterprises' personnel – as long as they are not taking a direct part in hostilities – and against business enterprises' facilities.
8. How are the operations of business enterprises protected against attacks under international humanitarian law?
One of the most immediate threats to business enterprises operating in conflict zones is that of military activities affecting their workforce or their assets.
International humanitarian law instruments do not provide a clear-cut definition of what amounts to 'direct participation in hostilities'. It is however generally understood that the commission of acts which, by their nature and purpose, are intended to cause actual harm to enemy personnel and matériel amounts to a direct participation in hostilities. That would clearly be the case if an employee of a business enterprise took up arms or participated in the planning of a military operation.
On the other hand, an employee of a business enterprise who supplied food or shelter to combatants or generally 'sympathised' with them would not be considered to be directly participating in the hostilities.
International humanitarian law strictly prohibits deliberate attacks on civilians and civilian objects,
[Article 48 of API ; Article 13 APII ] such as business enterprises, as well as indiscriminate attacks, i.e. attacks that do not distinguish military targets from civilian persons or objects.
[ Articles 51(4) and (5) of API]
Personnel of business enterprises – be they local or expatriate personnel or contractors – performing their usual business activities are generally considered civilians and therefore benefit from the protection against deliberate and indiscriminate attacks. However, international humanitarian law stipulates that civilians who directly participate in hostilities lose their protection from attack for the time that they are carrying out these activities [Articles 51(3) of API; Article 13(3) AP II]. It is not always easy however to determine what amounts to 'direct participation in hostilities'.
Recognizing the inherent difficulties in making such a determination in practice, international humanitarian law provides that in case of doubt as to whether a person is a civilian or a combatant, that person is to be considered a civilian.
If, for example, a business enterprise with manufacturing facilities in a country in conflict produces ammunition that is used by a party to the conflict, then its munitions factory becomes a legitimate target, as would trucks or planes used to transport the ammunition.
Similarly, if a private oil pipeline carries oil that is transferred to and used by a party to the conflict for its military operations, it also becomes a legitimate target.
On the other hand, if a business enterprise manufactures or sells products or services that do not effectively contribute to military action, it does not become a legitimate target, unless its premises are used by a party to the conflict for its military operations.
Business enterprises' property such as factories, offices, vehicles, land and resources are considered civilian objects and thus also benefit from the protection against deliberate and indiscriminate attacks. However, if business property is used for military purposes, it becomes a military object and risks being legitimately attacked by parties to the conflict. The test for determining whether business assets are military targets is in particular whether the facilities or resources in question are used in a way that makes an effective contribution to military action
[Article 52 of AP I].
It is thus crucial to keep in mind that any civilian object may become a military target depending on the manner in which it is used.
Legitimate attacks against military objectives can cause civilian “collateral damage”. However, international humanitarian law stipulates that military targets may not be attacked if the likely incidental consequences for civilians and civilian objects are excessive in relation to the concrete and direct military advantage of destroying the military objective. [Articles 51(5)(b) of API]
The use of a grenade to kill a single soldier in a crowded marketplace or factory would thus be prohibited as its adverse effects on civilians are likely to be excessive in relation to the concrete and direct military benefit of killing the soldier.
On the other hand minor damage to a factory located in close proximity to a major military barracks could be justified.
Civilians working in an ammunition factory would be at risk in case of attack against this military objective.
Between these examples are a number of more difficult situations, which business enterprises should consider when they determine where to situate their premises and operations or whether to relocate as the dynamics of the surrounding conflict change.
9. What additional protections do the personnel of business enterprises enjoy?
Direct attack is by no means the only threat to the personnel of business enterprises operating in conflict zones. These persons, whether locals or expatriate, may face many other serious threats to their physical integrity as a result of armed conflict.
International humanitarian law provides a series of specific protections for civilians in times of armed conflict. As civilians, the personnel of business enterprises enjoy legal protection against violence to their life, health and physical or mental well-being. In particular murder, torture in either mental or physical form, corporal punishment, rape and mutilations are all strictly prohibited [See Article 3 common to the Geneva Conventions of 1949; Article 32 GC IV; Article 75(2) AP I; Article 4(2) AP II. ]. Neither expatriate nor local personnel may be taken hostage by parties to an armed conflict [See Article 3 common to the Geneva Conventions of 1949; Article 34 GC IV; Article 75(2)(c) AP I; Article 4(2)(c) AP II]].
©ICRC / B. Neeleman / cg-n-00016-31
International humanitarian law also grants legal protection to civilians deprived of their liberty. In addition to laying down minimum conditions and standards of treatment in detention, all persons deprived of liberty enjoy the right to be informed of the reasons for their detention [See Article 75 (3) API] and to challenge the legality of their captivity. A host of more specific legal protections apply to different types of detention that may occur during armed conflict [See Articles 42, 43, 78 – 82 Geneva Convention IV and generally Geneva Convention III ]. – including ICRC visits to persons detained in relation with the conflict.
If a business enterprise's staff are charged with criminal offences linked to the armed conflict, a sentence can be handed down only by a court offering the essential guarantees of independence and impartiality [See Article 84 GC III; Article 71 GC IV; Article 75(4) AP I; Article 6(2) AP II]. The accused also have a right to be informed without delay of the particulars of the offence alleged against them. Moreover, collective punishment and convictions for acts that did not constitute crimes at the time of their commission are prohibited. Even in a context of armed conflict, the accused enjoy the presumption of innocence, the right to attend court and the right to appeal [For judicial guarantees during armed conflict see Articles 82 – 108 Geneva Convention III; Articles 71 – 78 Geneva Convention IV; Article 75(4) A P I; Article 6 AP II]
10. What additional protections do the assets of business enterprises enjoy?
One of the major risks faced by business enterprises in times of armed conflict involves the misappropriation or looting of assets and investments. The risks are particularly pronounced where an armed conflict creates a climate of hardship, scarcity of resources and collapse of local law enforcement mechanisms such as police and courts.
International humanitarian law states that private property must be respected [Article 46 Hague Regulations; Article 33 GC IV]. It is, for example, prohibited to confiscate private property. The prohibition covers the premises and investments of business enterprises, as well as housing for their personnel, to the extent that they are privately owned.
Under limited circumstances however, an occupying power may be entitled to seize the property of business enterprises, provided it is returned and compensation paid at the end of the armed conflict [Articles 52 and 53 Hague Regulations]. An occupier may also use a certain portion of State property to offset costs of administering the occupied territory [Article 55 Hague Regulations]. Beyond these limitations, unlawful appropriation of business assets during armed conflict or occupation will amount to pillage, which is considered a war crime [Article 33(2) of Geneva Convention IV, Article 47 Hague Regulations].
