The principle of distinction and business

The principle of distinction is a cornerstone of international humanitarian law. It establishes the rule that parties to an armed conflict must at all times distinguish between civilians and combatants, and between civilian objects and military objectives. Attacks must only ever be directed at combatants and military objectives. Civilians must never be targeted.

The idea behind the principle of distinction is to protect the civilian population from the effects of hostilities. However, the increasingly urbanised nature of armed conflict, the intermingling of civilians and soldiers, and the growing involvement of typically civilian actors in the battle space can complicate the principle of distinction.

One such complexity concerns dual-use objects – property and objects that are used for both military and civilian purposes, and which make an effective contribution to military action and offer a definite military advantage. This can include logistical infrastructure (roads, bridges, railways, ports and airports) to bring in weapons and other war-sustaining capabilities, for example, or power plants, electricity and media or telecommunications networks, on which both civilians and parties to a conflict depend.

While business facilities and assets are protected from deliberate and indiscriminate attacks, in accordance with the principle of distinction, this might not be the case for property that is used for a military purpose. In that instance, the once-civilian object might become a military target which can be legitimately attacked by parties to the conflict. For example, if a business operates manufacturing facilities that produce ammunition used by a local armed group during a conflict, this munitions factory is a legitimate military objective. Trucks or planes belonging to an oil company that carry and transfer oil, personnel or other objects to a warring party for use in its military operations also constitute legitimate targets. On the other hand, a business manufacturing or selling products or services unrelated to military activities, is not a legitimate target. But, if its premises or facilities are used by a party to the conflict for military operations, even only partially, those facilities may become legitimate targets.

Another complexity involves the civilianisation of armed conflict. In particular, the use by governments, armed groups and corporate actors of private military and security companies. These companies are increasingly being contracted to carry out a range of tasks, such as logistics, security, intelligence gathering and the protection of persons, objects and transport, that may constitute (or may be seen to constitute) a direct participation in, or contribution to, the armed conflict. Similarly, in occupied or disputed territories, private security forces might be tasked with settling civilians in these territories or destroying land or appropriating private property or natural resources in these territories, all of which may be in direct violation of international humanitarian law.

In addition, the effectiveness of security forces is contingent on their right and ability to use self-defence to carry out their contractual obligations, meaning use of force is an expected feature of the services they provide. Problematically though, given the nature and geography of their operations – often conflict-prone or conflict-affected environments – security forces are more likely to find themselves taking part in surrounding conflict. This poses two risks to businesses that contract the services of these companies. Firstly, as we’ll learn in coming weeks, civilians that directly participate in hostilities may lose their civilian status as a result, opening themselves up to legitimate attack by parties to the conflict. In other words, corporate staff become targetable. Not only does this threaten the safety of a business’s personnel and the assets they are responsible for securing, but it can also undermine the business’s role and position in the host and home country.
Second, personnel that are not sufficiently trained in IHL, and therefore do not understand or apply fundamental rules such as the principle of distinction, pose a threat to the civilian communities in which they operate. An employer – or its government – that wants to ensure good faith respect for the principle of distinction ought not to entrust civilians with conduct that may constitute direct participation in hostilities.

In response to the increased presence of private military and security companies in armed conflict, several international initiatives have been undertaken. These aim to clarify, reaffirm or enhance international legal standards regulating their activities and ensuring compliance with IHL in addition to human rights law. These initiatives include the Montreux Document and the International Code of Conduct for Private Security Service Providers, links to which are provided below.