INTRODUCTION
The primary aim of international humanitarian law is to reduce the detrimental effects of war and protect the rights of civilians. State-centred conflict evolved modern principles of international humanitarian law. In the current day, it faces the challenge of dealing with the growing role of corporations in armed conflicts. Historic calls to hold corporations accountable have persisted but have never come to fruition – existing legal frameworks primarily focus on individuals rather than corporate entities. The responsibilities and obligations of corporations are seldom addressed. This inadequacy raises a range of issues that affect corporate liability under international humanitarian law, including the limits of international criminal law and human rights law, the limits of the principle of state responsibility, the diverse nature of corporate involvement, and violations of corporate obligations. All these aforementioned concerns bring to light the urgent need for a legal framework addressing corporate liability.
Frequently, the corporate world interferes with the wider world’s concerns despite their purportedly “private” nature. Ukraine received consistent support from SpaceX during the ongoing Russia-Ukraine armed conflict. This is a prominent example of the growing involvement of corporations in conflicts and the complexities of holding them accountable under international humanitarian law. Starlink communications satellites generated by SpaceX provided significant leverage to Ukraine to conquer its battles, but the service was suddenly withdrawn. The satellite technology was not intended for military use.[1] This is a display of the complex role companies indirectly play in war. However, despite this central role, SpaceX was not subject to international humanitarian law obligations or fundamental principles such as humanity, neutrality, and avoiding unnecessary suffering.
In this article, we will investigate the gap in the current regulatory system for policies addressing corporate liability, the limitations of various aspects of international law, and recommendations for the future to contain corporate takeover of the public realm.
CURRENT REGULATORY SYSTEM FOR ARMED CONFLICT
For involvement in armed conflicts and international violations, there are existing treaties and customary laws primarily concerning states.[2] This poses a challenge as corporations are not held liable to the same extent. The ethical impact of any given corporation must be assessed as corporations involved in armed conflicts increase. The International Committee of the Red Cross (ICRC) has previously published guidelines for the protection of non-combat personnel associated with enterprises.[3] Failure to comply may result in criminal and civil liability. These obligations and violations of these obligations are addressed through international criminal law and international human rights law.
Although businesses are often associated with economic activity, the provision of goods and services can directly contribute to war atrocities in violation of international humanitarian law. In the field of human rights and environmental law, corporate negligence and acts that lead to serious human rights violations are attracting attention. However, in armed conflict scenarios, companies are often exempt from serious human rights violations.[4] The growing influence of corporations around the world requires identifying and punishing corporate wrongdoing, making corporations important international players with influence in geopolitics.
The challenges in the current international legal framework can be summarised as follows.
LIMITATIONS OF INTERNATIONAL CRIMINAL LAW
International criminal law is flawed in the sense that it holds individuals accountable for their crimes but neglects the possibility of corporate or other legal entities committing the same crimes on a larger scale. Corporate criminal liability must be established in a specific manner, however, any effort to commit to the same has been hindered by differences in domestic legal systems. Harmonisation of multiple legal systems is a recurring hurdle in international law.
States commit crimes against humanity but corporations are relegated to being an “abstract entity” incapable of possessing the mens rea necessary to be held accountable for crime.[5] The Rome Statute denotes the prosecution procedures for the gravest international crimes. Under the Rome Statute, liability must be held for a single natural person.[6] However, in the ILC Articles on Crimes Against Humanity there are steps being taken to improve the situation: “….each state shall take measures, where appropriate, to establish the liability of legal persons…”[7] Certain corporate actions like violation of environmental treaties or human trafficking have been addressed but the lackadaisical and noncommittal nature of the same prevents real law from being enforced.
Recently a trend has been established wherein corporates are held accountable, but not as singular entities. Instead, they are allotted the title of an accomplice or accessory to the crime. This was present in the case of Khulumani v. Barclays it was held that “private actors who substantially assist state actors [to] violate international law and do so to facilitate the unlawful activity [are] held accountable for their actions.”[8] The claims need to be substantiated with a heavy amount of evidence, which isn’t possible in all instances.
LIMITATIONS OF INTERNATIONAL HUMAN RIGHTS LAW
The Universal Declaration of Human Rights (UDHR) extends rights to individuals and organisations of society.[9] Corporations and companies do not directly receive these exact rights; they do not fall under the purview of the legislation. Some intergovernmental bodies such as the International Labour Organisation (ILO) have developed some soft and non-binding recommendations for corporations to comply with human rights standards. Direct application of these rights has yet to fully materialise.
Some of the central principles of UN recommendations have included a call 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”.[10] This is highlighted in the Responsibilities of Transnational Corporations and Related Business Enterprises, commanding corporations to abide by the humanitarian laws established under the Geneva Convention.[11]
REJECTION OF THE INTERNATIONAL LEGAL STATUS OF A COMPANY
In the past, international law has regulated entrepreneurial activities by states. The question of whether a company should have legal personality or associated obligations under international law is pertinent. Despite this, there is an unclear criteria to define legal personality. When transferring rights and obligations to companies, this creates a challenge.
DIFFERENT ROLES FOR COMPANIES IN CONFLICT AREAS
Businesses are of many varieties, hence playing different roles when violating international humanitarian law. They can be direct violators (like a private military company), an intermediary, or a contributor from time to time.[12] The process of prosecuting these companies is complex when keeping in mind jurisdictional issues and difficulty in conviction.
CONCLUSION
In international law, a central aspect is state responsibility. When a principle of international law is violated, the state should be accountable for its actions – these violations could include breaching a treaty or violating another state’s sovereignty. This can additionally be invoked when the actions of private actors such as corporations are attributable to the state. The threshold for this approach requires a strong link between business activities and the state to impose liability, rendering it moot in most situations where corporations act independently. The principle is still focused on the actions of the state rather than the actions of the corporation. Corporations must be dealt with on their merit.
The example of the impact Starlink satellites had on the Ukraine-Russia conflict when they suddenly withdrew shows the impact corporate activity can have on the livelihood of civilians involved. In the context of international law, the survival of states amidst global conflict and instability is dependent on compliance with agreed standards of international humanitarian law. This can be achieved with the following tactics.
First, we should extend the neutrality of non-conflict states to companies registered on their territory. This would prevent possible negative consequences for any parties to the conflict that could violate international humanitarian law. Next, states that are directly involved in conflicts should deploy companies in a way that emphasises fundamental rights. They should be regulated and overseen, made to abide by international humanitarian law, which requires adequate guidance. Multinational corporations (MNCs) are international and this should be recognised when considering the consequences of their actions concerning human rights. Strict laws should be enforced to put a check on the activities of both business and private military companies (PMCs) in conflict areas. A uniform international standard to hold corporations liable must be brought to the table.
Author(s) Name: Eshal Zahur (National Law University, Odisha)
References:
[1] Roulette J, “SpaceX Curbed Ukraine’s Use of Starlink Internet for Drones -Company President” Reuters (February 9, 2023) <https://www.reuters.com/business/aerospace-defense/spacex-curbed-ukraines-use-starlink-internet-drones-company-president-2023-02-09/> accessed November 26, 2023
[2] Matthew CR Craven, Malgosia Fitzmaurice and Maria Vogiatzi, Time, History and International Law (Martinus Nijhoff Publishers 2007).
[3] Carla Ferstman, International Organizations’ Obligations under Human Rights and International Humanitarian Law (Oxford University Press 2017) <http://dx.doi.org/10.1093/oso/9780198808442.003.0002> accessed November 27, 2023.
[4] Mark Pieth and Radha Ivory, Corporate Criminal Liability: Emergence, Convergence, and Risk (Springer Science & Business Media 2011).
[5] Donald RStJM and Johnston DM, The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (BRILL 1986)
[6] Rome Statute 2002.
[7] Crawford J, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press 2002)
[8] Hutchens K, “International Law in the American Courts – Khulumani v. Barclay National Bank Ltd.: The Decision Heard ‘Round the Corporate World” (2008) 9 German Law Journal 639
[9] Universal Declaration of Human Rights 1948
[10] Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights 2003
[11] Geneva Convention 1949
[12] Mishra S, “Critical Analysis of Corporate Liability under International Humanitarian Law” (The RMLNLU Law Review Blog, November 4, 2023) <https://rmlnlulawreview.com/2023/11/04/critical-analysis-of-corporate-liability-under-international-humanitarian-law/> accessed November 27, 2023
