Business enterprises carrying out activities that are closely linked to an armed conflict are required to respect relevant aspects of international humanitarian law. Furthermore, they may be in a position to play an important role in promoting respect for international humanitarian law among political and military authorities or other business enterprises within their sphere of influence. An understanding of international humanitarian law is thus an important ingredient in the ability of a business enterprise to live up to its obligations under the law and to any commitments it may have under the various codes of conduct or voluntary initiatives to which it may have subscribed. An appreciation of the implications of business operations in the dynamics of conflict is also key in identifying potentially significant risks of criminal and civil liability for complicity in violations of international humanitarian law.




11. What does international humanitarian law say with regard to managing the security of business operations?


In countries plagued by armed conflict or by high levels of lawlessness, business enterprises are often compelled to set up security systems. They may be required by local law to contract their security services from the government. They may have to hire private security companies. Or in particular circumstances, they may choose to resort to rebel forces or other armed groups to fulfil security roles. Problematically, in some instances, the same forces contracted to maintain security of a business enterprise take part in surrounding conflicts and at times violate international humanitarian law in the process.

Ordinarily, security personnel retained by business enterprises must operate in accordance with domestic law as well as with international law enforcement standards [See Article 3 of the Code of Conduct for Law Enforcement Officials, adopted by UN General Assembly Resolution 34/169 of 17 December 1979.]. These standards permit security personnel to use force only when strictly necessary and in a manner that is proportional to the threat faced. To the extent that this is within their control, business enterprises should ensure that security forces protecting their personnel and assets operate in accordance with domestic law and these standards.

It is possible that business enterprises operating in zones of armed conflict may be drawn into the conflict. In such circumstances their property may become a military objective and the security personnel defending it also. If this happens and business operations are attacked by parties to the armed conflict, the use of force is then regulated by international humanitarian law and the applicable rules are different. For example, international humanitarian law does not prohibit the use of lethal force, providing it is directed against combatants and does not violate other relevant rules of international humanitarian law (local law may impose additional limitations). International humanitarian law also stipulates that during armed conflict enemies who surrender may not be killed, the wounded must be provided with medical treatment and persons deprived of their liberty must be treated humanely [Common Article 3 Geneva Conventions; Article 40 AP I; Article 75 AP I]. Torture, inhuman treatment, rape and summary executions are strictly prohibited under all circumstances. Again, business enterprises must ensure that the security forces guarding their employees and assets operate in compliance with the rules of international humanitarian law.

As stated above, there may be situations where business enterprises have to hire for their protection the same State or rebel forces that are participating in conflict. Business enterprises that hire security or military forces who do not respect the rules of international humanitarian law while engaged in armed conflict may, under certain circumstances, be legally liable for assisting the commission of violations of international humanitarian law, even if they did not intend the violations to occur and if the offences were not perpetrated on their behalf. Indeed, because attacking civilians violates the most basic principle of international humanitarian law, companies that knowingly engage or collaborate with groups involved in such actions may run the risk of criminal and civil liability. In any event, engaging military protection from forces that do not respect the laws of war is incompatible with an undertaking to promote international humanitarian law.

Business enterprises must be aware that they face another risk when operating in conflict zones: if armed forces initially contracted to protect the facilities of business enterprises subsequently used those facilities to launch, or defend against, military actions, the infrastructure and personnel implicated in supporting such military actions would become military targets.

In addition, business enterprises should take note that they are limited in the types of weapons that can be used to ensure their security in times of conflict. Anti-personnel landmines, for example, are explicitly banned in all situations by the Ottawa Convention Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997] because of their indiscriminate effects on civilians. They also obstruct economic development and reconstruction. Other weapons that may cause superfluous injury or unnecessary suffering are also prohibited.


12. Are there rules relating to the acquisition of assets in situations of conflict?

Business enterprises which operate in conflict zones must apply heightened managerial care to ensure that they are not acquiring resources and property without the freely given consent of the owner. They may otherwise be accused of taking part in pillage.

International humanitarian law prohibits pillage, i.e. the unlawful taking of private property for personal or private use. Pillage is not limited to the acquisition of assets by force. In the past, courts have considered the acquisition of assets by entering into contracts as pillage when the agreement was based on threats, intimidation, pressure, or a position of power derived from the surrounding armed conflict. In other cases, transfer of company shares based on fear, management of a business enterprise for the benefit of individuals other than the owners and knowingly receiving goods obtained against the will of the true owner were all found to constitute pillage. Thus, when operating in a conflict environment, business enterprises should be extremely careful about the circumstances under which they acquire assets.


13. What does international humanitarian law say about labour conditions?

Business enterprises operating in situations of armed conflict face particular challenges related to the labour conditions of their workforce. Some companies have been found responsible for having benefited from the labour of civilians, prisoners of war or concentration camp detainees to carry out work that did not meet minimum standards.
Although international humanitarian law does not prohibit States from compelling certain categories of persons (persons deprived of their liberty or the civilian population of occupied territories) to carry out certain types of work, it does not grant this right to private actors and, in any event, it prohibits uncompensated or abusive labour. It lays down minimum working conditions and places limitations on the types of work that such individuals can be asked to carry out [See Articles 49 - 55 GC III; Articles 40, 51 and 95 GC IV; Article 5(1)(e) AP II]. The precise conditions and limitations depend on the nature of the armed conflict and the status of the persons concerned. As a general rule however, they exclude work that is connected with the armed conflict, unhealthy, dangerous or humiliating. International humanitarian law also lays down detailed provisions dealing with working conditions, duration of labour, pay, and right to compensation for occupational accidents and medical supervision.

On the issue of labour, the protections in international humanitarian law are less comprehensive than those found in the International Labour Organisation Forced Labour Convention (No. 29) of 1930 – also relevant in times of armed conflict – which prohibits forced labour of civilians in most situations. Business enterprises must, therefore, ensure that no forced labour is associated in any way with their operations.


14. What does international humanitarian law say on displacement?

Business operations sometimes involve obtaining access to resources and establishing transport routes in ways that may affect a civilian population’s residential or agricultural land. Securing such access within conflict zones has at times involved the intervention of warring parties who evicted residents by force. The taking of private property without due legal process and fair compensation may amount to pillage (see above). Moreover, international humanitarian law stipulates that, in situations of occupation or in times of civil war, civilians cannot be forcibly relocated except in limited circumstances and only temporarily when their security or imperative military reasons so demand [Article 49 GC IV and Article 17(1) PA II]. In this sense, the expulsion of civilians by armed groups acting on behalf of a business enterprise cannot be justified. In fact, if such practices were closely linked to an armed conflict, they could give rise to significant legal liabilities, both criminal and civil.


15. Are there any rules protecting the environment in times of conflict?

Business enterprises may have an impact on the environment in a variety of ways, whether directly through their operations or indirectly through the way their products or services are used. On the other hand, conflicts often have an undesirable impact on the environment. Heightened managerial care with regard to environmental issues is therefore required from business enterprises operating in conflict zones.

International humanitarian law contains rules intended to limit damage to the environment. For instance, it specifically prohibits forms of warfare that may be expected to cause widespread, long-term and severe damage to the natural environment [Article 35(3) AP I]. Furthermore, the rules of international humanitarian law for determining whether something is a military target also protect the environment. Incidental environmental consequences of an attack against a military target must also be considered and weighed against the military benefit of destroying the target in question. Moreover, attacking forests or other kinds of plant cover by incendiary weapons is prohibited, except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.

Business enterprises may be implicated in violating these rules by selling armed forces the means necessary to carry out attacks that cause severe damage to the environment. Therefore, business enterprises supplying products – such as chemical or biological weapons, or exfoliants – that can cause such damage during armed conflict may face legal proceedings.

Business enterprises may also be held responsible for violations of international humanitarian law perpetrated against the environment by providing services. Advising armies on how to engineer massive oil spills as part of an armed conflict, assisting in the development of weapons that cause widespread, long-term and severe damage to the environment or providing armed forces with the means to do so would be plainly inconsistent with an undertaking to promote international humanitarian law.


16. What are the specific risks associated with the manufacture and trade of weapons?

Armed conflicts feed on the availability of weapons. Business enterprises involved in the manufacture and trade of weapons consequently face particular challenges linked to their role in the way conflicts are fought. Business enterprises involved in the manufacture and trade of weapons may indeed play a part in exacerbating violations of international humanitarian law.

Several international humanitarian law treaties prohibit the development, production and transfer of specific weapons. Manufacturers or suppliers may, for example, be liable for trading weapons such as anti-personnel landmines or biological and chemical weapons, including poisonous gases. In fact, a number of these treaties also compel States to take appropriate measures to control arms transfers and ensure that individuals who engage in illegal activities are criminally prosecuted.

Production and trade in weapons other than those explicitly prohibited might also give rise to legal liability where the trader knowingly supplies weapons to end-users who use them to violate international humanitarian law. Considerations based on international humanitarian law are also relevant for products not traditionally used as weapons, provided that the manufacturers or suppliers know that the product is to be used to perpetrate war crimes.

An understanding of international humanitarian law and an interest in the conduct of potential purchasers are essential to the risk management of manufacturers and suppliers of weapons and facilitate greater respect for international humanitarian law.


17. What are the risks of liability under international humanitarian law?

In addition to the risk of becoming a military target, business enterprises operating in conflict zones are exposed to the surrounding conflict dynamics. Not only their operations, but also their personnel, products or services may become part of the ongoing conflict. In the worst-case scenario, any of these could result in or facilitate violations of international humanitarian law. Business enterprises therefore run legal risks, whether based on criminal responsibility for the commission of or complicity in war crimes or on civil liability for damages. The nature, implications and extent of these risks are of particular importance to business enterprises operating in conflict zones.
International humanitarian law states that not only perpetrators, but also their superiors and accomplices may be held criminally responsible for the commission of war crimes. Of these forms of commission, complicity is likely to be the most relevant to business enterprises.

An accomplice is someone who provides practical assistance, moral support or encouragement that has a substantial effect on the commission of a war crime. The accomplice must have had some knowledge that providing the assistance or support would facilitate the crime.

Some countries have passed national legislation that permits business enterprises to be held responsible for the commission of, and complicity in, war crimes. Moreover, the managers of business enterprises may face prosecution in a personal capacity. The fact that a manager acted on behalf of a business enterprise does not provide any sort of immunity from prosecution for international crimes. In addition, because all States have an obligation to investigate and prosecute certain war crimes irrespective of where the acts occurred, business enterprises or their managers may face proceedings in countries other than those in which they operate. Business enterprises should therefore not discount the possibility of legal proceedings simply because the country where they are operating is unlikely to conduct criminal investigations or incapable of doing so. The risk of corporate and individual responsibility for crimes perpetrated in the context of an armed conflict is thus an element of growing importance in a business enterprise's assessment of the range of risks associated with its activities during an armed conflict.

Finally, business enterprises and their managers also face the risk of civil liability. While criminal law seeks to punish individuals for war crimes, civil liability allows victims to seek compensation for damages. More particularly, civil liability enables individuals claiming to have suffered as a result of the wrongdoing of a business enterprise, for example, to seek compensation from national courts. Civil litigation is increasingly perceived as being a viable way of redressing violations of international humanitarian law by business enterprises, as civil cases can be brought directly by individual victims and the standard of proof is lower than that required in a criminal trial.