By: Sanjana Mishra
INTRODUCTION
The purpose of International Humanitarian Law (hereinafter “IHL”) is to limit the effects of war and protect individuals. It has developed from an era where States were the strongest actors in any conflict and the idea of conflict was centred around the state. Corporations in recent times have become a key geopolitical player in all arenas including armed conflicts. Historically, even during the Nuremberg trial, there was a demand to hold corporate violators accountable but even then, focus was largely on the natural person and not the legal person. This jurisprudence falls flat in the face of modern corporate structure and we see that laws drafted to address the state’s obligations are inept to address the corporation’s liability and duties. There are various issues that IHL faces in holding corporations accountable such as the narrow scope of International Criminal Law and International Human Rights law, the restrictive nature of state responsibility doctrine, and the varying nature of the role of Corporates resulting in consequences that may breach IHL obligations.
Recent Space-X assistance to Ukraine in ongoing international armed conflict raises questions regarding the increased participation of corporations in armed conflicts and current challenges in holding corporations accountable under IHL. Major aid to Ukraine has come in the form of a celestial body pseudonym for them, Starlink communication satellite managed by Space-X but soon Starlink access was taken away unceremoniously as Space-X “never meant its service to be weaponised”
This shows increased dependence and the multi fold role corporates can play without directly participating in a war. Though having played such a key role, no IHL obligations and fundamental principles of IHL such as humanity, neutrality or superfluous injury were applicable to Space-X.
ISSUES IN CURRENT ARMED CONFLICT REGULATORY REGIME
All treaties and customary law are centred around the State, this has made it harder to hold corporations accountable when they have contributed to armed conflicts and international crimes. There is a growing need to determine the moral dimensions of corporations with their ever-widening role in armed conflicts. In clarifying its position, the ICRC has released guidelines to protect business personnel not partaking in hostilities directly. They have non-binding obligations failing which they expose themselves to criminal and civil liability. When a conduct however is against obligation, accountability is implemented through International criminal law and International Human rights law.
When we think of corporations, it is only natural to think of them as conducting economic activity but sometimes the ambit of services or supply of goods that they carry out are directly used for war atrocities and committing the breach of IHL. Corporate negligence or acts amounting to grave human rights violations in the paradigm of Human Rights and Environment Law is already a growing phenomenon but in armed conflict situations we have seen corporations getting immunity against grave human rights violations. Corporations have a growing role in conflicts across the world which makes it necessary for identifying and sanctioning corporate misconduct. They are no longer a mere legal entity, they have become significant international actors affecting and influencing geopolitics.
Issues with the current International legal regime are multifold but they can be summarized into these points:
Narrow Scope of International Criminal Law
International criminal Law, right from the Nuremberg trial has always been of the opinion that crimes against international law are committed and carried out by individuals and not abstract entities with a view that entities would lack the mens rea to commit a crime against humanity and hence prosecution is carried out against private individuals. Liability under the Rome Statute also extends to a natural person. Even in howsoever brief discussions of corporate criminal liability nothing concrete got formulated owing to differences in domestic legal frameworks.
The only steps we see are in non-binding ILC Articles on Crimes against Humanity that require that “….each state shall take measures, where appropriate, to establish the liability of legal persons…”. In International criminal framework we have seen criminalization of particular form of corporate actions such as pollution of the environment, corruption and trafficking might offer foundation for extension of IHL liability to them. But strict nature of IHL and lack of political will has precluded the same.
There has been a trend of criminal tribunals going prosecuting the corporate as an accomplice. In Khulumani v. Barclays “private actors who substantially assist state actors [to] violate international law and do so for the purpose of facilitating the unlawful activity [are] held accountable for their actions.” An act of complicity has to fulfil a high threshold of being “direct and substantial” dues to which the contributory nature of corporate actions goes unaccounted.
Limitations of International Human Rights Law (IHRL)
The UDHR extends rights that it confers to “individuals and every organ of society” which has not been extended to legal persons such as corporate entity directly but we have seen organizations like ILO and OECD to come up with soft laws that have referred to the UDHR. There are non-binding UN recommendations such as the U.N. Commission on Human Rights, Responsibilities of Transnational Corporations and Related Business Enterprises with regards to human rights asking business enterprises to respect human rights norms such as the Geneva Convention. The guiding principles have called upon the state to “recognise that the risk of human rights abuses is heightened within conflict-affected areas and calls upon states to ensure that businesses do not contribute to such abuses.”
Rejection of International Legal Personality to Corporate
International law being state-centric traditionally regulates corporate actions through the State. The corporations have the “capability” to abide by international obligations but that alone cannot make them a subject of international law. Would making them a subject bring them at par with States in terms of duties and responsibilities? This necessarily does not have to be the case as ICJ has recognized the possibility that other subjects may exist in international law without being identical in kind or in rights conferred. Even if there is a legal vacuum or an understanding of multiple subjects being recognized in international law, there is no definition or criteria set out by International Law to define legal personality that will have rights and obligation to further become subject of law.
It may be argued that regulation and recognition of Corporations by the States and creation of bodies like the World Trade Organization to recognize rights of business in transnational interactions can provide sufficient grounds for regulation in the IHL regime as well. Legality can be conferred but the issue lies with who will confer this personality.
There is also another school of thought advocating for the application of principle of effectiveness, which says that IHL obligations are directly applicable on MNCs and corporates, especially since the new conflicts no longer correspond to classic inter-state conflicts.
Varying Role of Corporations in Conflict Regions
In the hypothetical scenario of an international armed conflict occurring on the southern borders of Country A with Country B, various categories of corporations may be identified concerning their involvement in International Humanitarian Law (IHL) violations:
Corporations as Direct Violators: Corporations directly breaching IHL obligations, such as Private Military Companies (PMCs), warrant heightened moral and legal scrutiny. PMCs, with a substantial nexus to armed conflicts, fall within the purview of IHL. Nevertheless, prosecuting corporate entities for such breaches often raises jurisdictional complexities. The state employing PMCs is best positioned to oversee IHL compliance, yet rigorous enforcement might clash with the state’s interests. State actions, founded on principles like reciprocity found in other IHL laws, could address this concern, provided a consensus on common standards and a normative international regulatory framework is established.
Corporation as a Facilitator: Armed conflicts frequently stem from a series of events, including campaigns fuelled by grievances and self-determination. The earlier introduced scenario aptly exemplifies a facilitating role, wherein a corporation knowingly neglects the consequences of its chosen business operations. Prosecuting such corporations under current International Criminal Law standards remains challenging, allowing them to violate IHL norms with relative impunity.
Corporation as an Incidental Contributor: When corporate conduct incidentally affects IHL, both legal and moral obligations are at their lowest ebb. However, the absence of robust moral condemnation and clear legal restrictions fails to align with the gravity of such behaviour. This disconnect exacerbates the consequences of business activities, undermining the integrity of IHL obligations.
CONCLUSION AND SUGGESTION
The concept of State responsibility has been central to international law and now has become a part of Customary International Law. This can be invoked when actions of “private actors” are attributable to state. The presence of at least one State actor is necessary for an armed conflict, whether international or non-international in nature. Hence a way to hold corporates liable of their responsibilities and obligations would be by extending the customary principle of State responsibility. However, this can happen only when acts of that corporation are attributable to the state by a strong nexus for which the threshold has been set very high.
The Starlink satellite example of Ukraine-Russia shows that a corporation can hold huge power in a conflict that its support to Ukraine was rudimentary and since it has with drawn it, civilians too have been affected.
It is not that all breaches by a business would be attributable to the state (which could be an aspect to be looked into) but that in an international law framework, we have increased dependence on States themselves to ensure that IHL obligations are not breached by any party. This could happen in the following ways:-
- States not party to conflict could remain neutral and such neutrality shall extend to all Corporates which are registered in that jurisdiction. This does not necessarily mean there needs to be a cessation of trade but they should be able to be in a position to not adversely affect one party of conflict in a way that breaches IHL (whether directly or in a facilitatory role).
- States that are party to conflict need to use Corporations but in consonance with IHL obligation keeping in mind all fundamental principles for which a strong guiding principle is needed.
- Recognition of the international character of MNCs and exercising increased human rights due diligence over them.
- Formulation of hard law governing and regulating Corporate and PMC activity in an armed conflict region for a common international standard.
(Sanjana Mishra is a law undergraduate at NMIMS School of Law, Mumbai. The author may be contacted via mail at sanjanamishra3010@gmail.com)
Cite as: Sanjana Mishra, Critical Analysis of Corporate Liability under International Humanitarian Law, 4 November 2023, <https://rmlnlulawreview.com/2023/11/04/critical-analysis-of-corporate-liability-under-international-humanitarian-law/>.
The RMLNLU Law Review Blog 