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Published online by Cambridge University Press: 07 November 2013
With the globalisation of market economies, business has become an increasingly prominent actor in international relations. It is also increasingly present in situations of armed conflict. On the one hand, companies operating in volatile environments are exposed to violence and the consequences of armed conflicts. On the other hand, some of their conduct in armed conflict may lead to violations of the law.
The International Committee of the Red Cross (ICRC) engages with the private sector on humanitarian issues, with the aim of ensuring compliance or clarifying the obligations that business actors have under international humanitarian law (IHL) and encouraging them to comply with the commitments they have undertaken under various international initiatives to respect IHL and human rights law.
In times of conflict, IHL spells out certain responsibilities and rights for all parties involved. Knowledge of the relevant rules of IHL is therefore critical for local and international businesses operating in volatile contexts. In this Q&A section, Philip Spoerri, ICRC Director for International Law and Cooperation, gives an overview of the rules applicable to business actors in situations of conflict, and discusses some of the ICRC's engagement with business actors.
Philip Spoerri began his career with the ICRC in 1994. Following a first assignment in Israel and the occupied and autonomous territories, he went on to be based in Kuwait, Yemen, Afghanistan, and the Democratic Republic of the Congo. In Geneva, he headed the legal advisers to the Department of Operations. He returned to Afghanistan as head of the ICRC delegation there from 2004 to 2006, when he took up his current position. Before joining the ICRC, he worked as a lawyer in a private firm in Munich. He holds a PhD in law from Bielefeld University and has also studied at the universities of Göttingen, Geneva, and Munich.
1 See Claude Voillat, ‘Pushing the humanitarian agenda through engagement with business actors: the ICRC experience’, in this issue.
2 See The Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict, ICRC and Federal Department of Foreign Affairs, government of Switzerland, 2008, (print release in August 2009), available at: www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf (last visited November 2012).
3 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, Nils Melzer (ed.), Geneva, May 2009, available at: www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/participation-hostilities/index.jsp (last visited November 2012).
4 See e.g. the van Anraat case, or the Zyklon B case (British Military Court, Hamburg, Trial of Bruno Tesch and two others, Case No. 9, 1–8 March 1946, published in Law Reports of Trials of War Criminals, Vol. 1, United Nations War Crimes Commission, Her Majesty's Stationery Office, 1947, pp. 93–104).
5 Note that the ‘should have known’ standard is unique to the International Criminal Court (ICC), the ad hoc tribunals having used a standard of ‘had reason to know’. Furthermore, under the ICC Statute, the mens rea requirements for military and civilian superiors are different. See respectively Arts. 28(a)(i) and (b)(i) of the Rome Statute of the ICC.
6 See International Criminal Tribunal for Rwanda (ICTR), The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Trial Chamber I, 27 January 2000, para. 880.
7 See above note 1.
8 ICRC, Business and International Humanitarian Law: An Introduction to the Rights and Obligations of Business Enterprises under International Humanitarian Law, Geneva, December 2006, available at: www.icrc.org/eng/resources/documents/misc/business-ihl-150806.htm (last visited November 2012).
