Don’t forget the Geneva Conventions: achieving responsible business conduct in conflict-affected areas through adherence to international humanitarian law

ABSTRACT

This article examines the question of how a business operating in a conflict-affected area can uphold human rights. It contends that a crucial yet often overlooked element is a business’s commitment to embedding the fundamental standards of international humanitarian law (IHL) (as distinct from international human rights law) into its policies and practices. The United Nations Guiding Principles on Business and Human Rights state that companies doing business in conflict-affected areas should respect IHL—the law of armed conflict. However, businesses are often unfamiliar with IHL and its relevance to their operations; it both provides legal protections and represents potential risks and liabilities. Similarly, the scholarly discourse around business and human rights (BHR) tends to overlook the relevance of IHL. The absence of IHL from the scope of the draft BHR treaty currently being negotiated at the United Nations is indicative of this. While some businesses operate with greater conflict sensitivity than others, in most cases they do not use an IHL lens to do so. The article outlines the significance of IHL for business and provides an affirmative case for greater integration of IHL into the BHR project, including its governance instruments and practical tools, to help realise the goal of responsible business conduct in conflict-affected areas.

KEYWORDS:

• international humanitarian law
• human rights
• responsible business
• conflict-affected areas

Notes

1. See, especially, Convention relative to the Protection of Civilian Persons in Time of War (1949) (Geneva Convention IV).

2. Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflict (1977) (AP I); and Protocol Additional to the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflict (1977) (AP II).

3. See, for example, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects (with Protocols I, II and III) (1980) (CCW).

4. The Convention respecting the Laws and Customs of War on Land (1907) (Hague Convention IV) was adopted at the Second International Peace Conference. The Regulations concerning the Laws and Customs of War on Land (1907) (Hague Regulations) were annexed to it.

5. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (1997); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (1992); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (1972).

6. For the United States, see Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (US), s. 1502. For the European Union, see Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down Supply Chain Due Diligence Obligations for Union Importers of Tin, Tantalum and Tungsten, Their Ores, and Gold originating from Conflict-Affected and High-Risk Areas (2017).

Additional information

Notes on contributors

Jonathan Kolieb

Jonathan Kolieb is Senior Lecturer at the Graduate School of Business and Law, RMIT University, where he also serves as Peace and Conflict Cluster Leader at RMIT’s Centre for Business and Human Rights. Jonathan’s research focuses on various aspects of responsible business conduct in conflict zones, including the human rights and humanitarian law obligations of transnational corporations operating in conflict-affected areas. Jonathan has been a visiting fellow at Australian National University and George Washington University and has acted as an external legal consultant to the United Nations’ Office of the Special Representative of the Secretary-General for Children and Armed Conflict. Prior to joining RMIT in 2015, Jonathan held positions at the Embassy of Australia in Washington DC and with several NGOs focusing on human rights and international affairs in Australia, the US, and the Middle East. Jonathan is also a member of the International Humanitarian Law Advisory Committee of Australian Red Cross.