The ICRC is well known as an independent humanitarian organization that protects and assists persons affected by armed conflict. What do business enterprises have to do with this?
Indeed, the ICRC is mandated by the Geneva Conventions to protect and assist persons affected by armed conflict, and to promote awareness of, and respect for, international humanitarian law. To fulfil this mandate, the ICRC seeks constructive dialogue with all State and non-State actors who can influence armed conflicts. Since 2000, the ICRC has therefore been engaging with business enterprises on humanitarian issues, mainly with the aim of helping them understand their rights and meet their obligations under international humanitarian law.
Why should business enterprises be concerned about international humanitarian law?
Although many business enterprises have adopted corporate policies to ensure they respect or even promote respect for human rights, the implications of international humanitarian law – essentially the laws of war – are quite distinct from those of human rights law, and the commercial world has not addressed this dimension yet. As business enterprises are increasingly operating in environments affected by armed conflict, their rights and obligations under international humanitarian law have become increasingly relevant. This body of law affords protection to business enterprises' personnel, assets and capital investments. At the same time, it imposes legal obligations on managers and staff, and can even entail their criminal responsibility. In the worst-case scenario, this could amount to serious violations of international humanitarian law – war crimes.
Can a business enterprise be guilty of a war crime?
Business enterprises – including their personnel – operating in conflict zones run certain legal risks, whether based on criminal responsibility for the commission of or complicity in war crimes or on civil liability for damages. International humanitarian law states that not only the perpetrators of violations, but also their superiors can be held criminally responsible for the commission of war crimes. For example, an arms dealer who sells weapons to a client knowing that they will be used to commit war crimes may be complicit in those crimes, regardless of whether he or she shares the client's intentions. Similarly, a business enterprise that provides (on a commercial basis) logistical support that is likely to facilitate the commission of violations of international humanitarian law may attract legal liability. The risk of corporate and individual responsibility for crimes perpetrated in an armed conflict is therefore becoming an increasingly important element in a business enterprise's assessment of the risks associated with its activities during such conflicts.
Does international humanitarian law also apply to private military and security companies operating in a conflict-affected environment?
Yes. Ordinarily, private security firms hired by business enterprises for protection in a conflict zone are bound by the domestic law of the place where they operate. This usually permits security personnel to use force only when strictly necessary and in a manner proportional to the threat faced. If security personnel are drawn into the conflict, the use of force is then regulated by international humanitarian law and the applicable rules are different. Business enterprises that hire private security firms who do not comply with international humanitarian law while engaged in armed conflict may be held liable for assisting the commission of violations of this law.
What does the ICRC do to promote international humanitarian law to business enterprises?
Our activities include participating (as an observer) in multi-stakeholder processes that aim to promote respect for human rights and to mitigate the social impact of business projects. One such process is the Voluntary Principles on Security and Human Rights, which explicitly refers to international humanitarian law. Another example is cooperation with the Swiss government on an initiative to promote respect for international humanitarian law by private military and security companies operating in conflict situations. Yet another is bilateral discussions with business enterprises, at headquarters or operational level. A new ICRC publication, Business and international humanitarian law, aims to familiarize business enterprises with both their rights and their obligations under international humanitarian law.
