Protections for business personnel

Employees and contractors of businesses operating in conflict zones often work in precarious security situations and may face serious threats to their physical safety.

Under IHL, all business personnel – including local and expatriate personnel, contractors and consultants – are presumed to be civilians, which means they benefit from the many protections that IHL affords to civilians. These include protection against violence to their life, health, physical or mental well-being. For example, they must be protected against deliberate and indiscriminate attacks by militaries or armed groups. There is also an absolute prohibition on murder, torture, corporal punishment, rape, mutilation and hostage-taking.

However, these employees and contractors can lose the protection afforded by IHL if they directly participate in the hostilities. While it remains a matter of debate as to what “directly participate in hostilities” (DPH) means and there is no clear dividing line, it is generally understood that to qualify as DPH an act must meet the following criteria:

1. The act must reach a certain threshold of harm;
2. There must be a direct link between the act and the harm likely to result from that act; and
3. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another.

In other words, acts intended to cause actual harm to enemy personnel and property will amount to DPH.

Therefore, an employee of a business who participates in the planning or facilitation of a military operation would likely lose their civilian protection. On the other hand, an employee of a business that supplies food or shelter to a combatant would likely not be deemed to be directly participating in the hostilities.

This becomes especially relevant when considering the actions of private security personnel employed or contracted by companies. Personnel are often provided with relatively comprehensive security and human rights training that address use of force and some weapons-related issues. However, security personnel also need to be able to identify when and how use of force standards conflict with, are complemented by, or are replaced with the legal obligations governing conduct in armed conflict. There are additional rules that come into effect, for example regarding the legality of weapons used or the provision of equipment and services to certain groups connected to the conflict, as well as the legal obligations flowing from DPH, as discussed above. While the simple fact of carrying a weapon does not, of itself, imply that the bearer takes a direct part in the hostilities – and this would not lead to a loss of protection under IHL – specific acts of combat will.

It is notoriously difficult to draw a line between when a person will and will not be considered directly participating in hostilities. Additionally, this assessment often needs to be made quickly, in real-time, and on the ground in a conflict zone. So, it is important to note that under IHL there is a presumption that if a person’s status is unclear, they should be considered a civilian first and afforded the respect and protection that comes with that designation.