What does doing business in armed conflict mean?

International humanitarian law applies to States, organised armed groups and soldiers. It also applies to businesses in circumstances where their activities are “closely linked to an armed conflict”. As such, responsible business conduct in armed conflict may hinge on whether and how a business is directly or indirectly linked to that conflict or its parties.

Defining “closely linked” for this purpose is not always straightforward. However, in his article ‘Differentiating the Corporation: Accountability and International Humanitarian Law’, David Hughes helpfully identifies three forms of corporate conduct that implicate IHL – that is, ways a business’ actions could be linked to, or could be perceived to be linked to, an armed conflict.

Firstly, a business may be in direct violation of IHL, by acting in a way that breaches the laws of war. An example of this could be direct attacks on, or the removal of, civilians carried out by the company’s security contractors.

Second, and more commonly, a business may assume a less direct secondary or facilitatory role, in which the business aligns its operations with the unlawful conduct being carried out by others (for example the State or an armed group) or wilfully ignores the consequences of its actions or inaction. In certain circumstances, this could be considered complicity in – or aiding and abetting – the violation of IHL or a war crime. Perhaps the business doesn’t “pull the trigger”, but it does benefit in some way from the activity or partnership. Consider the following examples:

• A company is involved in manufacturing weapons and sells these to a party to an armed conflict knowing that it is likely they will be used to commit violations of IHL.
• A business operates in a country where there is an ongoing armed conflict between the government of that country and rebel groups. The business wants to access an area of the country for mining, but civilians live in that area and do not want to leave their homes. The business pays the government a fee to secure that area of land for it, and the government’s armed forces do so by forcing the civilians to leave the area and not return. The business knows that this is occurring but turns a blind eye.

Third, the business may accidentally and indirectly contribute to harm through its ordinary business activities. An example of this might include a business, which operates in a country experiencing a non-international armed conflict, paying its required taxes to the relevant tax authorities, and that money being used by the government to purchase weapons and supplies for its war efforts. This does not mean the business directly carries out some act that violates or supports another to violate IHL. Rather, its conduct has an incidental impact, usually without the relevant personnel’s knowledge or intent. Notably, though, there may still be risks – including possible criminal and civil liability risks – that attach to these sorts of actions and behaviour.