Alignment with human rights and sustainability

As alluded to earlier, compliance with IHL is not a voluntary activity for corporate actors. IHL is universal and binding – all people and entities involved in or linked to armed conflict, including businesses, will have responsibilities under IHL.

This is in contrast to the largely voluntary commitments that many companies have now adopted in the areas of human rights, sustainability and corporate social responsibility (CSR).

Human rights law, and the values and rules that underpin it, is fundamental to our society. The ever-increasing corporate commitments to respect human rights in companies, supply chains, customer bases, and communities is very welcome. Similarly, the embrace by many leading companies of responsible business practices and sustainability guidelines – not least of which include the Sustainable Development Goals – is equally welcome.

Corporate participation in achieving the goals of human rights, dignity and a sustainable future for all is – in the words of former UN Secretary-General Ban Ki Moon – vital.

The United Nations’ Global Compact and the Sustainable Development Goals are the two primary global frameworks within which socially-minded companies can express their commitment to being socially responsible businesses.

Nevertheless, membership in or commitments to these initiatives, or others like them, is not a substitute for ‘conflict sensitivity’ or compliance with IHL when doing business in conflict-affected areas. Indeed, knowledge of and respect for IHL is a necessary supplement – and complementary to the values and goals of these frameworks.

Human rights and IHL should be key elements of companies’ due diligence and risk management activities. By failing to adequately integrate IHL and conflict sensitivity into due diligence and other policies, companies risk harming the communities in which they operate and expose themselves to unnecessary operational, financial and reputational risk, as well as significant criminal and civil liability.

In a 2020 article written by one of our authors, Dr Jonathan Kolieb, ‘Don’t forget the Geneva Conventions – achieving responsible business conduct in conflict affected areas through adherence to IHL’, he writes: ‘Human rights…should not be understood by reference to human rights treaties alone. In conflict-affected areas, responsible corporate best practice must include respect for both IHL and IHRL norms.’ They are complementary, but different.

To understand this better, read the following extracts from Dr Kolieb’s article.

Complementary but different

The differences between International Human Rights Law (IHRL) and International Humanitarian Law (IHL), especially as they apply to corporate activities, are not well appreciated by many lawyers, let alone corporate managers and risk managers (Prandi 2011). Yet the norms enshrined in IHL give rise to a host of unique risks to a company, its personnel, and its bottom line. A company that fails to adhere to IHL obligations exposes itself to allegations of not only impropriety but also war crimes. Moreover, IHL provides protections to companies and their personnel and assets in conflict-affected regions, as well as important safeguards for civilian populations. This makes it a valuable inclusion in any business’s human rights policies and practices. The literature exploring the intersections and interplay between these two bodies of public international law is rich (Schindler 1979; Kolb 1998; Provost 2002; Heintze 2013). While their histories and scope are distinct, IHRL and IHL both reflect elemental considerations of humanity (Doswald-Beck and Vité 1993) and are motivated by the preservation of human dignity (Schindler 1979, 3). However, these motivations manifest differently in the terminology and substantive provisions of these two sets of laws. For example, their approaches to the right to life stand in stark contrast to one another. While this is a fundamental human right and is enshrined in human rights treaties, it is qualified by IHL in times of armed conflict (Human Rights Committee 2018). The reality is that the Geneva Conventions envisage and permit the taking of life during wartime by placing parameters around what is and is not lawful killing. In fact, many scholars, as well as the International Court of Justice and the ICRC, consider that IHRL must be interpreted through the lens of IHL (Legality of the Threat or Use of Nuclear Weapons (1996) (Nuclear Weapons); Doswald-Beck and Vité 1993; Kolb 1998; Kleffner 2013). That is, IHL tempers the otherwise sacrosanct right to life by permitting armed attacks and the killing of combatants.

The specialised nature of IHL

IHRL is designed to apply in both times of peace and armed conflict (Nuclear Weapons; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004)). However, human rights treaties commonly contain provisions allowing states to suspend many of their treaty obligations during times of civil unrest or armed conflict (e.g. International Covenant on Civil and Political Rights (1966) (ICCPR), art. 4). That is, large parts of IHRL are derogable, such that governing states can determine, within certain parameters, whether or to what extent they apply in times and situations of armed conflict (Human Rights Committee 2001). In contrast, IHL only applies in situations of armed conflict or ongoing military occupation (ICRC 2015). IHL applies even when IHRL does not or has been suspended. Further, governments cannot suspend or derogate from IHL rules, including those in the Geneva Conventions (ICRC 2015). IHL is the sole specialised body of international law designed to operate and regulate behaviour in conflict-affected areas. Importantly, IHL has rules for conflicts both between countries (‘international armed conflicts’: AP I, art. 1) and within them, such as civil wars (‘non-international armed conflicts’: AP II, art. 1).

Another point of difference between IHL and IHRL is the widely accepted extraterritorial nature of IHL obligations. For instance, armed forces deployed to foreign countries remain bound by IHL, and any violations of IHL can be pursued through domestic courts. In contrast, the extent to which human rights protections can be extended extraterritorially remains unclear and controversial (Milanovic 2011; Chambers 2018).

IHL is addressed to individuals and companies, not just states

IHRL is addressed to sovereign states. States—not companies or their staff—are obliged to protect human rights. Indeed, this is a cornerstone of the UN’s ‘Protect, Respect, Remedy’ Framework and its associated Guiding Principles: while states have a duty to protect human rights, corporations should respect them (Ruggie 2008). To be sure, many prominent scholars have argued that corporations should have human rights obligations (e.g. Deva 2017, 68; De Schutter 2015, 41; Bilchitz 2016, 203). It is a matter of debate in the context of the BHR treaty currently being negotiated at the UN (Lopez 2017, 370). However, even the latest draft does not include direct human rights obligations for companies. Rather, it seeks better state implementation and enforcement of human rights protections among their domestic business sectors (OEIGWG 2019).

In contrast, all entities participating in or linked to hostilities in an armed conflict—be they states, companies, or armed groups—are required, as a matter of law, to respect IHL (Kleffner 2013, 47). It is widely accepted that IHL binds both state and non-state actors, including corporate personnel and executives, whose activities are closely linked to an armed conflict (ICRC 2006, 14). Moreover, IHL also seeks to regulate individual behaviour. It places constraints on individual conduct in situations of armed conflict, regardless of whether the individual is a member of the government armed forces or a small rebel group fighting the government (Kleffner 2013, 43). Importantly, both private and public security forces are obliged to respect IHL in situations of armed conflict. So too are all corporate staff, including managers and other personnel, even if not in a security force.

Different in substance: obligations and protections for companies under IHL

There are also substantive differences between IHRL and IHL obligations that make the incorporation of IHL into corporate risk management and human rights due diligence processes, and associated governance instruments, imperative. The two bodies of law give rise to different legal obligations and protections. As a result, they offer complementary but distinct legal frameworks for companies doing business in conflict-affected areas (Kolb 1998). IHL is applicable in different circumstances and precludes some corporate activities that may otherwise be seen as not falling foul of human rights obligations. IHL violations may lead to violations of IHRL; they may also be violations of IHRL, though this is not necessarily the case.

Now it’s your turn

What do you think constitutes a “responsible business”? Do you think IHL is better framework to regulate business conduct than human rights in conflict-affected areas? Share your thoughts in the comments.