The Role of the Private Sector in Ensuring Respect for IHL
On September 12th, the International Committee of the Red Cross (ICRC) published its report, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts. It is customary for the ICRC to produce such a report in the run-up to each quadrennial International Conference of the Red Cross and Red Crescent. This year’s report focuses, among other topics, on ensuring compliance with international humanitarian law (IHL), in a section entitled, “Building a Culture of Compliance with IHL.” In this section, the ICRC emphasises the role of States in this regard, noting that “States are primarily responsible for ensuring full compliance with IHL.”
Interestingly, however, the report also refers to the role of business entities. In a subsection discussing arms transfers, the ICRC writes that “[g]reater awareness is also needed among business entities of the requirements under IHL and the Arms Trade Treaty, and greater recognition of businesses’ roles and responsibilities in upholding IHL rules.”
This post takes a closer look at the roles and responsibilities of business entities in upholding IHL rules. It argues that in the current state of world affairs, the private sector can play an important role in ensuring respect for IHL. It first looks at the position of the private sector in IHL, with a view to ascertaining whether business entities have obligations under that body of law. It concludes they do not have obligations directly under IHL, nor to respect IHL nor to ensure respect for it. The post argues nevertheless that private companies have at least a moral responsibility and may also be bound by domestic legislation of the States in which they are incorporated or operate to contribute to respect for IHL. Finally, the post discusses different ways in which business entities can do this.
Business Entities’ Obligations Under IHL
As the ICRC underlines in its report, IHL traditionally revolved around States. Starting with common Article 3 to the Geneva Conventions and followed by Additional Protocol II, IHL also came to recognize one particular type of non-State actor, organized armed groups, as an important actor with IHL obligations. By contrast, IHL has very little to say about other kinds of non-State actors, including business entities. The only direct reference to such actors in an IHL treaty is in Article 53 of Geneva Convention I. This provision prohibits the use of the Red Cross emblem “by individuals, societies, firms or companies either public or private” that are not entitled to do so.
Article 53 could at first sight be read as directly imposing an obligation on the entities it refers to. In order for this to be the case, they would have to have a legal personality under international law. After all, only entities with legal personality can have rights and obligations under international law. Some commentators have argued that business entities can be regarded as subjects of international law. Others suggest that there is a category of “partial” subjects of international law to which such entities belong. However, the majority view still seems to be that put forward by James Crawford: “[i]n principle, however, corporations do not have international legal personality.”
Importantly, business entities are not bound by the obligation in common Article 1 to the Geneva Conventions to “ensure respect” for IHL by others. In the words of that article, only “High Contracting Parties” to the Conventions have that obligation. In recent years, however, a number of guidelines have been drafted under the auspices of international organizations that are also relevant in this regard. They include the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct and the UNDP Guide on Heightened Human Rights Due Diligence for Business in Conflict-Affected Contexts. The former state for example that “in situations of armed conflict enterprises should respect the standards of international humanitarian law. In the context of armed conflict or heightened risk of gross abuses, enterprises should conduct enhanced due diligence in relation to adverse impacts, including violations of international humanitarian law.” Such guidelines are not legally binding under either international law or domestic law.
However, corporations may be bound indirectly by IHL, through domestic legislation implementing it in States in which they are incorporated or in which they operate. More importantly, I argue that business entities have a moral obligation to contribute to ensuring respect for IHL. There is increasing international recognition that business entities should contribute to ensuring respect for human rights, as set out for example in the UN Guiding Principles on Business and Human Rights. The rationale for this in my view also extends to ensuring respect for IHL, which is based on respect for human life and dignity in the same way as human rights.
Despite not having obligations of their own under IHL, my argument is that the private sector can potentially play an important role in ensuring respect for IHL by parties to armed conflicts. Considering the widespread IHL breaches in contemporary conflicts, it is desirable if not necessary that the sector actually takes that role. The remainder of this post discusses various forms this can take.
How Business Entities Can Contribute to IHL Compliance
It is obvious that one way in which business entities can contribute to respect for IHL is by not violating it. This is particularly relevant in the context of private military and security companies. The role of the Wagner Group in the conflict in Ukraine underlines this. Closely related to this is the importance of private companies not providing assistance to others in breaching IHL. Corporate complicity in violations of IHL can take many different forms. Again, the Russia–Ukraine conflict provides examples. For instance, it has been alleged that private satellite companies provided satellite imagery to Russia which was then used to direct cruise missiles at targets which were not legitimate military objectives.
Complicity can also take the form of financial support to an actor that breaches IHL. For example, the Chiquita Brands company in the 1990s and 2000s made payments to the United Self-Defense Forces of Colombia (Autodefensas Unidas de Colombia, AUC), a paramilitary organization that was responsible for widespread war crimes.
A final example of alleged complicity is provided by the so-called “Lundin case.” This refers to the criminal trial of two executives of Lundin Energy, a Swedish oil company, that is ongoing in Sweden. The two accused are being tried for complicity in war crimes carried out by the Sudanese army and allied militia in southern Sudan from 1999 to 2003. It is alleged that the company asked the Sudanese government to secure a potential oilfield, knowing this would mean seizing the area by force. The request, it is argued in the case, made the executives complicit in war crimes that were then carried out by the Sudanese army and an allied militia against civilians.
The private sector can contribute to ensuring respect for IHL not only by refraining from committing or aiding IHL violations, but also by taking positive measures. In many cases it can exert considerable influence on parties to armed conflicts through various instruments. Such instruments include contracts. A company can integrate respect for IHL in contracts it concludes with subcontractors and others. For example, requiring sub-contractors in a contract to respect IHL would prevent them from using prisoners of war as labor. Contract provisions can play an important role in requiring or creating incentives for those other parties to respect the law.
A second instrument available to business entities is their influence or “leverage.” Of course, how much influence companies have over parties to an armed conflict varies. Where a company does have influence, however, a wide range of steps is available to use such leverage. For example, in its contacts with authorities, a business entity can assert the importance of respecting IHL. One way businesses could strengthen respect for IHL is by persuading States to include respect for IHL in investment treaties.
A final example of an instrument business entities have at their disposal, and the most far-reaching one, is to exit the relationship or country concerned. Provided the reasons for doing so are made clear, this can send a strong message. An example, although related to allegations of genocide rather than IHL violations, is the Japanese company Itochu. This company recently ended its cooperation with an Israeli company closely linked to the Israeli military, citing provisional measures imposed by the International Court of Justice against Israel in the case brought by South Africa.
A final way in which business entities can help ensure respect for IHL is by contributing to accountability efforts. This can take various forms. For instance, business entities may provide financial support, like Microsoft did in 2007 when it donated $100,000 to the Extraordinary Chambers in the Courts of Cambodia (ECCC).
Business entities can also provide support through making available products and services. One example is the use of satellite imagery collected by private companies as evidence of war crimes. Although the use of such images comes with its own challenges, it can be an important, and sometimes the only source of evidence. Among others, the independent international commission of inquiry on Ukraine has used satellite imagery to search for evidence of war crimes in the conflict between Russia and Ukraine.
Concluding Thoughts
As Mike Schmitt wrote on Articles of War earlier this year, current conflicts seem to show an eroding commitment to IHL. It is not so much the lack of applicable IHL rules but rather a lack of respect for and enforcement of these rules that is the problem. These developments risk undermining belief in IHL as a restraint on the conduct of hostilities. To restore that belief, increased attention on ways to ensure respect for IHL is needed. This post has argued that although States have an important role in ensuring respect, they are not the only ones. The private sector can also provide an important contribution, one which is at present still largely overlooked.
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Marten Zwanenburg is Professor of Military Law at the University of Amsterdam and at the Faculty of Military Sciences of the Netherlands Defence Academy. He has previously worked as a legal counsel for the ministries of Defence and Foreign Affairs of the Netherlands.
Photo credit: BelTA News Agency
