The Role of Business in War: A Different Defense to Corporate Complicity? Part I: The Old Offense

[Maya Nirula is a dual-qualified international human rights lawyer with multi-jurisdictional experience consulting and litigating on issues of business and human rights]

Introduction 

This is the first of a two-part series, the Role of Business in War. Part I: The Old Offense will evaluate the interaction between International Humanitarian Law (IHL), International Human Rights Law (IHRL), and International Criminal law (ICL) in governing gross human rights abuses and corporate complicity. Part II: A Different Defense will examine a potential new defense to such complicity through the integration of IHL and ICL into a business’s due diligence to better identify risks, and consequential amendments to relevant processes and policies to prevent or mitigate such risks.  

The Old Offense

There is a long, undisputed history of business participation in conflict-affected areas. There is also an unspoken awareness that businesses often contribute to, or assist governments or armed groups in, the commission of gross human rights abuses when operating in such areas. If businesses are frequently complicit, why is accountability so infrequent? 

Recent decades have witnessed the belated development of enforceable legal frameworks on corporate responsibility, accountability, and complicity. The concretization of laws governing responsible business behavior, together with penalties like criminal liability for senior officials, has been a significant milestone in the business and human rights (BHR) field. Although business participation in international crimes is commonly examined through the lens of IHRL, and complicity is determined through ICL, the inclusion of IHL to this discourse remains fragmented. 

Legal Landscape

It is notable that most gross human rights abuses are international crimes and are thus regulated by ICL (e.g., torture, crimes against humanity), and, if in conflict-affected areas, by IHL (e.g., war crimes like willful killing). The inherent ability to derogate from many IHRL provisions during conflict, along with limitations to its enforceability against non-State actors, render it insufficient to independently ensure responsible business practices in such areas. However, since IHRL and IHL are complementary disciplines that have key conceptual and practical differences, it is clear that businesses should – at a minimum – respect both in situations of armed conflict. It is this precise interplay between IHRL, IHL, and ICL that confirms their compatibility with one another, with each discipline providing distinct protections to (and in some cases obligations on) businesses. Regrettably, businesses rarely integrate IHL or ICL considerations into their policies or processes when operating in conflict zones, despite the ICRCs efforts to highlight it.  

ICL and Corporate Complicity 

Allegations against corporations do not typically allege that the corporation committed the abuses in its own right. Rather, the corporation is said to have provided support to those who actually committed the abuses, either by encouraging them and/or by providing some form of assistance.

Corporate complicity can broadly be understood as occurring when companies become involved in the perpetration of gross human rights abuses. In the context of criminal law, complicity is conceptually associated with ‘aiding and abetting’ wherein participation in known or foreseeable crimes amounts to complicity, attracting liability (including individual criminal liability). Other ICL doctrines, such as superior responsibility and accessory liability, may also be used to hold senior executives and corporate managers additionally liable for grave breaches contributed to by their employees. For example, corporate personnel and operation sites can be seen as complicit in a conflict by providing logistical assistance, security services, information, etc. As examined in Part II, such actions would attract liability on the corporation for its participation, and its superiors may also be held liable for a failure to prevent the criminal conduct of their subordinates. 

ICL provides a three-prong test to determine complicity: (a) causation or contribution; (b) knowledge and foreseeability; and (c) proximity or remoteness. Causation determines whether a company’s conduct enabled, exacerbated, or facilitated the gross human rights abuses and is equivalent to the concept of actus reus in criminal law. Knowledge and foreseeability, equivalent to the concept of mens rea, assess whether the business knew that its actions could likely contribute to gross human rights violations. Finally, proximity establishes whether the company was close – in terms of geography, duration, frequency, and intensity of interactions – to the principal perpetrator of the gross human rights abuses. 

While all three requirements must be independently established, courts primarily focus on the test of causation given that it is the most onerous element to satisfy. Crucially, in practice, the element of knowledge and foreseeability can be used to nullify a finding of complicity. Put another way, if a company can demonstrate that it conducted adequate and appropriate due diligence of its operations in conflict-affected areas, and sufficiently addressed identified risks, it may be able to use this assessment to negate the required mens rea. 

When participation in gross human rights abuses arises in conflict-affected areas, ICL continues to be supported by IHRL and is expectedly supplemented by IHL. In practice most business fail to integrate IHL into their policies and processes when operating in conflict areas. This failure is driven by the misconception of most businesses that IHRL considerations are sufficient. Businesses are largely unaware that factoring IHL into their decision-making in conflict areas may negate a finding of complicity. 

IHRL and IHL 

Identifying norms for conducting business in conflict-affected areas responsibly is neither a question of choosing between IHL and IHRL nor of which is better. Rather, they are complementary.

The UN Guiding Principles on Business and Human Rights (UNGPs) are cognizant that “some of the worst human rights abuses involving business occur amid conflict where the human rights regime cannot be expected to function as intended” and the “host State may be unable to protect human rights adequately”. They also appreciate that “some operating environments, such as conflict-affected areas, may increase the risks of enterprises being complicit in gross human rights abuses committed by other actors” and emphasize that “enterprises should respect the standards of IHL”. Despite this express recognition, IHRL continues to dominate the discourse around business behavior, to the exclusion of IHL (or ICL). This is problematic; especially so because businesses often conduct extensive due diligence to examine whether its operations affect the human rights of others “but fail to consider how the same conduct influences specific IHL based norms.”

Notably, a company that is accused of human rights abuses may also be criminally liable for grave breaches of IHL and ICL, including war crimes, torture and genocide. IHL is underpinned by the need to protect civilians and thereby places more effective constraints on conduct during conflict. It is broader than IHRL in both its scope and application. IHL binds non-State actors, including businesses, corporate personnel, and executives. Conversely, IHRL lacks genuine accountability measures as, whilst binding on States, it merely provides guidance in relation to companies and individuals.  IHL also encompasses a specialized set of rules regulating corporate behavior in conflict-affected areas, including minimum degrees of protection and, importantly, standards of conduct that all businesses must respect. It follows then that businesses that fail to incorporate IHL into their due diligence, especially given the recent frequency of incidents involving business personnel (e.g., private security), are amplifying their risks.

Conclusion

The interplay between IHL and ICL is akin to the complementarity between IHRL and IHL. It is clear that all three legal regimes must be considered in tandem to appropriately regulate corporate conduct in conflict-affected areas. It then follows that a failure to integrate IHL into due diligence and other operational policies results in a heightened risk of causing or contributing to harm in the communities in which businesses operate, exposing them to additional operational, legal and financial risks. This is augmented by the risk of criminal liability for its personnel. 

Given the distinct nature of IHL rules, it is theorized that businesses which integrate considerations of IHL into their decisions to continue to operate in, or provide services to, conflict-affected areas can use their due diligence and risk assessments as a possible legal defense to charges of corporate complicity. This will be further explored in Part II: A Different Defense.