Introduction
Although its development as a specific set of rules was linked to a personal business venture,Footnote 1 international humanitarian law (IHL) does not address business activities directly. IHL rules focus mainly on “parties to armed conflict”, whether international armed conflicts (IACs) or non-international armed conflicts (NIACs). Business entities do not fall under the category of “parties”, except in situations where they directly participate in hostilities, such as with private military companies (PMCs). Yet, it is close to a truism to affirm that private companies are critical actors in conflict-affected areas.Footnote 2 Business entities may get involved in conflict situations in various ways. Such involvement depends on different factors, such as the nature of the business activity, its size, and its business objectives and strategies.Footnote 3 For instance, one cannot put on the same footing a bakery ensuring minimum bread delivery in a conflict zone,Footnote 4 a PMC engaged in hostilities alongside a warring party,Footnote 5 and a business actor supporting a party to the conflict financially in order to help it continue its armed activities.Footnote 6 Similarly, a transnational corporation (TNC) carrying out an extraction activity in a conflict zone and trading with State or non-State actorsFootnote 7 or doing business in territories that are illegally occupied,Footnote 8 on the one hand, and a business entity supporting a regime that has launched an aggressive war against its neighbour,Footnote 9 on the other, should not be put in the same box. Generally, however, when it comes to their relationship with IHL, business entities can be considered either as civilians and potential victims of armed conflicts, or as being involved in infringing IHL rules. In the latter case, they can act as perpetrators of IHL violations or accomplices.Footnote 10
In recent years, there has been an increasing reaffirmation of specific “duties”, “obligations” or “responsibilities” imposed on private companies operating in conflict zones. For instance, under the UN Guiding Principles on Business and Human Rights (UNGPs), business entities are responsible for respecting human rights. This responsibility implies that business entities respect the standards of IHL during armed conflicts.Footnote 11 Moreover, the third revised draft of the international legally binding instrument on TNCs and other business enterprises refers to IHL as an interpretative framework of human rights obligations of States and businesses.Footnote 12 The International Law Commission's (ILC) 2022 Draft Principles on the Protection of the Environment during Armed Conflicts (ILC Draft Principles) are even more specific. The Draft Principles provide that private corporations exercise due diligence concerning the protection of the environment, including human health, when acting in areas affected by armed conflict.Footnote 13
Unfortunately, these references to IHL as applicable to business activities remain vague and lack elaboration. They provide no detail on the nature of the rules applicable to business entities during armed conflicts. However, businesses in conflict-affected situations carry out activities that may relate to the armed conflict. As an armed conflict inevitably impacts the natural environment, such activities may also cause environmental harm.Footnote 14 This makes the lack of systematic articulation of business obligations in such situations concerning, and the lack of business environmental obligations in armed conflict (BEOAC) even more so. For instance, the ILC did not elaborate on the actual conceptual and normative grounds of BEOAC in its Draft Principles, despite reference to the environmental “responsibilities” of private companies.Footnote 15 Further, there is no reference to business actors in the International Committee of the Red Cross's (ICRC) recent Guidelines on the Protection of the Natural Environment in Armed Conflict (ICRC Guidelines).Footnote 16 The same is true with the recent increasing literature on environmental issues related to armed conflicts, whose focus has been quite far from the role of business actors.Footnote 17
The aim of this article is, therefore, to contribute to filling this gap. The article proposes to discuss whether and, if so, the extent to which IHL imposes environmental obligations upon private companies in conflict situations. We submit that business entities have environmental duties during armed conflicts. These obligations derive from IHL rules and – perhaps more importantly – other complementary international law rules and principles. In the context of this article, business obligations mean legal duties and not merely “social responsibility”, which, in its initial conceptions at least, is based on the idea that business companies have no legal obligations but rather moral and ethical responsibilities.Footnote 18 As this article will demonstrate, such a narrow conception of the role of business entities no longer stands. The reference to business entities in this contribution is broad: although most of the legal difficulties lie in the conduct of TNCs, other business entities are also of concern. Finally, although this contribution focuses only on the question of businesses’ obligations, it must be stressed that business entities also have rights and must benefit from protection from the effects of hostilities.Footnote 19
As the body of law concerning armed conflicts, IHL rules are of primary pertinence in delineating the contours of BEOAC. This article reflects this relevance while acknowledging IHL's limits and the need to call complementary rules from other (international) legal regimes into play. Such complementarity is a useful tool for ascertaining the environmental obligations imposed on corporations during armed conflicts; IHL rules serve as an interpretative framework for other regimes, which in turn assist in interpreting IHL rules.Footnote 20
The first part of the article discusses the conceptual foundations of BEOAC, while the second part addresses the substantive nature of such obligations. The third part focuses on the issue of enforcement mechanisms, and the final part concludes the authors’ assessment.
Clarifying the conceptual and normative foundations of BEOAC
Business entities are not parties to international conventions, and customary international law applicable to States may not be directly applicable as far as businesses are concerned. Hence, the preliminary question arises as to whether IHL and other international norms could provide for corporate environmental obligations. This section engages with this critical conceptual difficulty and identifies the specific normative basis of BEOAC.
Conceptual clarification
Are business entities addressees of international law rules? It is frequently argued that business entities are not international obligation bearers, allegedly because they lack international personality.Footnote 21 From a classic “State-centric approach” regarding the possession of international rights and subjection to international obligations, this conception contends that corporations do not bear international obligations. John Ruggie – the mastermind behind the UNGPs – has explained that multinational entities “barely exist under international law” and that international law imposes duties only on States, not on companies directly.Footnote 22 However, the preconceptions of this dominant approach around subjectivity play out as a kind of sleight of hand, attributing or denying international status and legal responsibilities. This narrow opposition between “being” and “not-being”Footnote 23 has become an “intellectual prison” clouding all discussion on this issue.Footnote 24 It is beyond the scope of this article to dwell on the intricacies of this debate in international scholarship. At any rate, as pointed out by Alvarez, “skepticism about the personhood of corporations should not be confused with doubts about whether international corporations have responsibilities under international law”.Footnote 25 In our view, the following practical considerations would suffice to explain conceptually the grounds on which BEOAC stand.
Firstly, it is undeniable that international acts and rules address various non-State actors. This raises legitimate questions on how such actors respond to the attribution of legal responsibilities bestowed upon them.Footnote 26 As far as private entities such as corporations are concerned, it is our view that international law not only acknowledges their existence – or presence, if one prefers – but also, more significantly, accords them rights and imposes duties upon them. The ability of the international legal system, through existing subjects, to grant rights and impose obligations on private entities is a settled issue.Footnote 27 Such a prise en consideration of the corporation was brought to light by the International Court of Justice (ICJ) in the Barcelona Traction case. The Court indicated that international law concerns the corporation as “a development brought about by new and expanding requirements in the economic field”. It clarified that “international law is called upon to recognise institutions of municipal law that have an important and extensive role in the international field”.Footnote 28 The corporate presence entails interfering with the application of some international rules and some concurrence with traditional actors such as States.
Secondly, the situation warrants a pragmatic approach. There is a need to give effect to international rules and principles whose application necessarily involves corporations, either as beneficiaries or duties bearers. It is indeed hard to contest that international law, as it stands today, creates obligations for corporations as much as it confers rights to them. Authors who deny international personality to corporations have acknowledged this fact, although they only see these obligations as being indirectly imposed on corporations.Footnote 29 However, aside from the fact that several international instruments specifically Footnote 30 address corporate conduct, the very conclusion that an obligation is direct or indirect depends on how one interprets the relevant source.Footnote 31 What some see as indirect obligations may appear to others as direct obligations. Corporations possess an international stature that does not equate them to other international actors or conflate all corporations in the same (legal) reality.Footnote 32 Such an approach aligns with ICJ's Advisory Opinion in the Reparation for Injuries case, whereby the court suggested that the international capacity may differ from one entity to another.Footnote 33 In their current development stage, corporations are not only passive addressees of international rules that protect them but also actively participate in dispute settlement mechanisms and shape international law rules to their advantage.Footnote 34 The international duties imposed on them echo such rights and privileges.Footnote 35
Lastly, whether international law imposes obligations upon corporations can be deduced from international responsibility mechanisms intended for such corporations. This implies that international obligations not only stem from international rules addressing corporate conduct but are also ascertained by the legal consequence attached to the violations of these obligations – i.e., responsibility. The existence of civil or criminal responsibility is evidence of correlative obligations.Footnote 36 In order words, the fact that corporations can incur international responsibility – be it through investment arbitration, human rights, international criminal responsibility, or in a field such as the law of the sea – is the most tangible indication that they are international duties bearers. Even though such responsibility has mainly been addressed before domestic courts, this does not take away its international character, for the existence of responsibility must not be confused with the mode of implementing it. What matters is that such responsibility is enforced by applying rules existing in or deriving from international law.Footnote 37
Legal basis of BEOAC under IHL
It has been shown above that there is no conceptual hindrance to the existence of international obligations for corporations. Here we argue that, from an IHL perspective, the conceptual basis of these obligations is even easier to demonstrate. Firstly, while other international law regimes, such as human rights, have been traditionally (mis)understood as only applicable to States, IHL was extracted from such State-centric logic at a very early stage. True, most IHL norms were designed for states and contemplated IACs.Footnote 38 However, since the early moments of their formation, and with the practical necessity of considering “conflicts not of an international character”, IHL rules rapidly expanded their rationae personae application to non-State actors irrespective of their legal status. Moreover, IHL applies to individuals with no proven link to the armed forces of a government or an armed group.Footnote 39 This indicates a fortiori that nothing bars a non-State entity such as a corporation from becoming a duty bearer under IHL.
However, the yardstick for the applicability of IHL rules to non-State actors rests on their “taking part” in the conflict. This generally covers “being a party” to an armed conflict,Footnote 40 but except for situations where business entities such as PMCs are engaged in hostilities, it is hard to contend that a private corporation constitutes a party to a conflict. The question therefore arises as to what the ultimate criterion for applicability is. According to Kolb and Hyde, what matters is the “substantive ability of an entity or a person to participate in an armed conflict by making acts of war”.Footnote 41 In our view, it is not inaccurate to contend that the criterion ought to be interpreted not formally and, at any rate, with some flexibility.Footnote 42 In practice, the fact that IHL imposes obligations on individuals with no direct ties to parties to a conflict corroborates such a loose approach. The litmus test, therefore, is the material link between the conduct in issue and the context of the conflict. In its Kunarac appeals judgment, the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted a broader perspective of this relationship, referring to the “environment” in which an act is committed. In that sense, an act that is “shaped” by or “closely related” to an armed conflict is covered by IHL rules.Footnote 43 This is enough to encompass actors in conflict areas, including corporations. Hence, the ICRC has considered that IHL
does not just bind States, organised armed groups and soldiers – it binds all actors whose activities are closely linked to an armed conflict. Consequently … a business enterprise carrying out activities that are closely linked to an armed conflict must also respect applicable rules of international humanitarian law. Moreover, whether a business enterprise operates in a context of ongoing armed conflict or whether its operations, established in a peaceful setting, are caught up by the outbreak of an armed conflict does not affect its obligation to respect international humanitarian law.Footnote 44
As is apparent, the ability of a private corporation to bear obligations under IHL is robustly grounded. As IHL duty bearers, corporations may even pose less conceptual difficulty than armed non-State actors. It is a well-known fact that the applicability of IHL to armed groups has often proved controversial based on legitimacy considerations by States. States consider that such applicability would pertain to recognition.Footnote 45 This legitimacy concern surrounding armed groups is arguably absent regarding business entities, as their legitimacy as social actors is generally not an issue. Similarly, it is often argued that IHL does not apply to “abstract” organizations but to individuals who engage in hostilities.Footnote 46 Such a conception could exclude a corporation – an abstract juridical person – from the scope of application of IHL. However, this argument does not stand up to scrutiny. First, it is incorrect to contend that IHL does not apply to abstract entities, for it applies to States, which are arguably the most sophisticated abstract political organizations. Second, the fact that IHL applies to “organizations” was already acknowledged in the Nuremberg trials, where some organizations were labelled “criminal”.Footnote 47 Third, the applicability of IHL to individuals cannot trump its applicability to the States or non-State organizations to whom those individuals belong. In this way, the idea that business entities, as such, are different from the individuals composing them is not disputable. This has legal implications in different branches of law applicable to companies.Footnote 48 In this context, the applicability of IHL to the corporation does not prevent its applicability to individual staff members or directors. Such applicability to the “abstract business entity” is even critical regarding responsibility and reparation.Footnote 49
As will be explained more clearly later in the article, the overall conceptual justification of BEOAC rests on an ontological consideration relating to the actual nature of the rules protecting the environment during armed conflicts. The legal value that these rules aim to protect is the environment. Given the fragile context created by an armed conflict, although relatively limited, IHL rules on protecting the environment stem from considering that armed conflict may adversely affect the environment, especially when the parties utilize certain means of war. In their spirit, these rules aim at protecting the environment as part of human life. Hence, the environment is considered a civilian object.Footnote 50 These protective rules oblige any actor intervening in a conflict context, regardless of status. For instance, there is no logical reason why pollution or pillage would be prohibited for armed groups or governmental forces but allowed for corporations operating in conflict situations. Although other rules, including those of domestic origin, may equally apply, as long as the conduct is “closely linked” to the conflict, IHL rules become relevant. These protective rules apply regardless of the type of conflictFootnote 51 – what harms the environment in IACs cannot be unharmful in NIACs. Equally, the origins – that is, the authors – of such harm do not matter. This does not mean, however, that the nature and the scope of BEOAC are identical to those of parties engaged in hostilities.Footnote 52 Furthermore, BEOAC must be adapted to the nature of businesses and their activities in an armed conflict.
Legal foundations of BEOAC in other international regimes
Although IHL rules regulate armed conflicts – and are often referred to as the lex specialis of armed conflict – they are not the only international regime applicable in armed conflict. In addition to IHL, BEOAC may also flow from various other sources of international legislation; henceforth, a complementary approach is critical. Moreover, the consensus that IHL rules on the protection of the environment during armed conflicts are limited warrants such an approach. Three complementary sources are discussed below.
The first source is international human rights law (IHRL). Although the relationship between IHRL and IHL has proven somewhat controversial, it is safe to state that the latter overlaps with the former in various aspectsFootnote 53 and that IHRL remains applicable in armed conflicts. The question of whether private corporations bear human rights obligations has also been controversial; indeed, the question of whether corporations are duty bearers under international law has mainly gained traction in the context of human rights.
The common reference in this field is the UNGPs adopted in 2011 by the UN Human Rights Council (HRC) after background work by John Ruggie, the special representative of the UN Secretary-General on this topic. The salient conclusion of Ruggie was that private corporations have “responsibilities” to respect human rights. He opposed “responsibilities” with “duties” and considered that only States bear human rights “obligations”. This position raised many criticisms,Footnote 54 and it is, in our view, antithetical to the emphasis put on access to remedy in the UNGPs. Rights holders’ access to remedy cannot be recognized without a legal obligation owed to them. A legal remedy correlates to a (legal) right and a corresponding legal obligation. Some UN bodies, such as the sub-commission of the former Human Rights Commission, had long concluded the existence of human rights duties on corporations.Footnote 55 Assuming that the UNGPs reflected an “uncertain” normative situation at the time of their adoption, Ruggie considered them only as the “end of the beginning”; therefore, it is not unreasonable to contend that things have drastically evolved over the past decade and that there is more evidence that corporations are (human rights) duty bearers under international law.Footnote 56 For instance, the Special Tribunal for Lebanon found no issue affirming that “human rights standards and the positive obligations arising therein are equally applicable to legal entities”.Footnote 57 At any rate, based on the reasons enumerated earlier in this section, we believe that these obligations exist as a matter of law.
Turning more specifically to corporate environmental obligations, it is worth noting that the relationship between the protection of the environment and human rights is well established.Footnote 58 Some UN human rights bodies have indicated the existence of such obligations. For instance, acknowledging that businesses can potentially interfere with human rights – with an environmental dimension – several General Comments of the HRC use a broad formulation when defining the rationae personae scope of human rights duties, highlighting, for instance, obligations of actors other than States parties.Footnote 59 Under the recent UN General Assembly resolution on the right to a clean, healthy and sustainable environment, business enterprises are mentioned just like other stakeholders and are called upon to ensure such rights for all.Footnote 60 In the context of the occupation in Palestine, the HRC fact-finding mission indicated, among other human rights violations, “the use of natural resources, in particular water and land, for business purposes”, as well as “pollution, and the dumping of waste in or its transfer to Palestinian villages”.Footnote 61 For its part, the African Commission on Human and Peoples’ Rights (ACHPR) has indicated that “under the African Charter [on Human and People's Rights], corporate obligations towards rights holders have a clear legislative basis”. The ACHPR indicates that corporations must “ensure continuously that their acts or operations are in full compliance with internationally accepted human and peoples’ rights, labour and environmental standards to avoid any incident producing harm or curtailment of rights of people”.Footnote 62
Another relevant source in framing BEOAC is, naturally, international environmental law (IEL). This set of rules is essentially composed of multilateral conventions on the protection of the environment as well as customary environmental rules. They apply during both IACs and NIACs. While the legal basis for the application of IEL to State armed forces is evident in NIACs, it could be unclear on what basis these rules apply to non-State actors, especially business entities. However, the raison d’être of IEL makes its rules applicable “to all situations regardless of the type of conflict involved”.Footnote 63
While IEL rules impose obligations mainly on States, this does not mean that only States are required to protect the environment. Environmental protection is conceived of in international law as a common concern of humankind, prompting some to consider some of its rules as having a jus cogens character.Footnote 64 Many IEL treaties contain specific provisions addressing corporate conduct.Footnote 65 Moreover, although some of these conventions provide for exceptions during armed conflicts, they remain applicable – and some provide for even greater environmental protection regimes – in armed conflict.Footnote 66 Additionally, general principles of IEL, such as the “polluter pays” principle, are directly relevant for business entities. It is therefore not surprising that these environmental obligations for corporations have been reflected in the ILC Draft Principles.Footnote 67 Furthermore, these corporate obligations are progressively interpreted as encompassing duties related to climate change.Footnote 68
Finally, another critical source of BEOAC worth mentioning is UN Security Council resolutions. Such resolutions imposing obligations on corporations and private entities can be traced back to the context of decolonization and efforts to uphold the right to self-determination.Footnote 69 However, after the Cold War's end and the Security Council's revitalization, many resolutions imposed direct obligations on non-State entities such as corporations. This happened, for instance, with resolutions concerning the situations in Sierra Leone,Footnote 70 Liberia,Footnote 71 AngolaFootnote 72 and the Democratic Republic of the Congo (DRC).Footnote 73 In the latter context, the continuing role of private corporations in the environmental harms associated with the conflict was already a major concern for the Security Council in the early 2000s. At that time, for instance, the Security Council created a panel of experts to focus on the illegal exploitation of the DRC's resources. The panel placed numerous business entities on a sanction list and pointed out the “implication of foreign enterprises” in the “criminal and illicit exploitation” of the natural resources of the DRC.Footnote 74
It is apparent from the above that the formulation of legal obligations imposable on business entities during armed conflicts is not only conceptually sound but also flows from various sources of “positive” international law. Though we have focused on these main sources for brevity, however, other sources exist. One could think, for instance, of general principles of lawFootnote 75 or even voluntary commitments by corporations themselves.Footnote 76 In any event, there is a necessary combination and interactions between international, regional, domestic and transnational sources in framing corporate obligations under international law.Footnote 77
The nature of BEOAC
This section discusses the precise nature or content of BEOAC. It argues that when involved in a conflict situation, business entities must refrain from causing harm to the environment. They must also proactively take measures to prevent the occurrence of such harm. These two dimensions will be discussed in turn.
Do no harm
Business entities intervening in conflict-affected areas must preserve the environment from harmful operations. Such obligations vary depending on the nature of the corporation; for instance, the obligations of PMCs or other corporate security staff engaged in the conduct of hostilities are akin to the obligations strictly imposed by IHL – and complementary regimes – on “parties” to an armed conflict. However, as pointed out above, many corporations in conflict situations cannot be considered “parties”. The obligations to respect the environmental rules applicable in armed conflicts can only be accessed based on the – potential or actual – impacts of such business activities on the environment. Being by nature a negative obligation,Footnote 78 in this context, “do no harm” means that corporations must undertake their activities without infringing on the environment and the environmental rights of others.Footnote 79 What this obligation implies can only appear through an in concreto assessment using a complementarity approach between different protective regimes. Therefore, IHL rules offer a framework of obligations, together with other rules, prompting the need for interpretive interaction between different sources. The following subsections provide further guidance on what form these obligations might take.
Exploitation of natural resources in armed conflict
It is common knowledge that most conflicts are shaped around the “exploitation” of natural resources.Footnote 80 The commercial objective of some business activities is to use natural resources; think, for instance, of extractive industries. Hence, in principle, such “exploitation” is not problematic per se, as long as the business entity carrying it out operates within the law's confines. However, the exploitation by businesses of natural resources during armed conflicts may pose various environmental concerns. Such concerns have been raised in emblematic situations such as the DRCFootnote 81 and Colombia,Footnote 82 to mention just two. From the perspective of IHL, corporations have general and specific obligations related to the exploitation of natural resources. Two categories of provisions serve as a starting point for ascertaining these obligations: some of the IHL rules on this matter concern the “appropriation or destruction of property”,Footnote 83 while others regard the issue of pillaging.Footnote 84 These rules generally have a customary international law nature applicable in both IACs and NIACs.Footnote 85 Particularly relevant for corporations, the “property” protected from destruction and seizure in this context must be understood broadly and includes “high-value commodities such as timber, gold and oil, but also parts of the natural environment such as water and fertile land”.Footnote 86
Regarding the rules applicable to the appropriation of “property”, the activities of business enterprises in occupied territories provide interesting insights. The term “property” is broad and encompasses collective and public property, including several constitutive parts of the environment. The relevant rules of IHL do not prohibit all types of acquisition and destruction by an Occupying Power, as some might be allowed under strict military necessity conditions.Footnote 87 However, the Occupying Power is bound by the rule of usufruct, which means that it cannot act beyond mere administration. Acts of “disposition” are therefore prohibited.Footnote 88 For instance, in the context of Palestine, the UN General Assembly had considered that measures taken by Israel for the exploitation of natural resources of Arab territories were illegal.Footnote 89 This stems logically from the basic rule that the occupier has authority and not sovereignty over the occupied territory.Footnote 90 In that regard, considering that the Occupying Power is not allowed to “exploit” natural resources such as minerals or oil, there is an implied obligation that such exploitation must not be undertaken by foreign companies operating in collaboration or with the consent of the Occupying PowerFootnote 91 – no military necessity can justify such exploitation of natural resources. Besides the IHL framework, determining business obligations in this context requires looking at other complementary regimes that prove even more precise. For instance, the principle of permanent sovereignty of people over their natural resources prohibits exploitation of those resources without the people's consent.Footnote 92 Such exploitation may also contradict other civil, social and economic rights. In the context of illegal occupation, it can be argued that companies have a legal obligation not to assist in the continuance of such illegality.Footnote 93
The IHL rules regarding pillage seem even more relevant regarding corporate obligations during armed conflicts. The term “pillage” – plunder, spoliation and looting – refers to the appropriation or obtention by an individual of public or private property without the owner's consent.Footnote 94 Pillage constitutes a war crime both in IACs and NIACs.Footnote 95 The Nuremberg Military Tribunal acknowledged the responsibility of business entities in widespread and systematized acts of dispossession and acquisition of property, in violation of the rights of the owners, during the Second World War.Footnote 96 Pillage extends to “a systemic economic exploitation of occupied territory” according to the ICTY.Footnote 97 For the ICRC, the “systematic extraction of oil stocks and the unlawful exploitation of natural resources such as gold and diamonds are war crimes”.Footnote 98 In contemporary war, private enterprises serve as the primary vehicle of such systemic economic exploitation. In the Armed Activities case, the ICJ found that the looting, plunder and exploitation of natural resources in the DRC violated IHL, especially the prohibitions against pillage found in Article 47 of the 1907 Hague Regulations and Article 33 of Geneva Convention IV.Footnote 99 The judgment also refers to instances where Ugandan forces and high-ranking officials were involved and facilitated “illegal trafficking in natural resources by commercial entities”.
Interestingly, in this case, the ICJ brings into the legal framework other international instruments, such as the African Charter on Human and People's Rights.Footnote 100 The Elements of Crimes under the Rome Statute of the International Criminal Court (ICC) indicate that for the war crime of looting to be constituted, it is enough that the perpetrator appropriated certain property intentionally and for its private or personal use without the owner's consent. The nexus requirement is that the conduct occurred in the context of and was associated with an IAC and that the perpetrator was aware of factual circumstances that established the existence of an armed conflict.Footnote 101 Although some particular types of property appropriation may not qualify as unlawful under IHL, military necessity cannot justify pillage.Footnote 102
Other environmental dimensions of illicit exploitation of natural resources may include certain types of corporate conduct that heavily strain the environment. By way of illustration, in Armed Activities, it was acknowledged by the ICJ that certain business activities, such as timber production, can lead to massive deforestation.Footnote 103
Similarly, corporate activities such as the large-scale acquisition of land or activities with massive polluting potential and extractives operations that imply significant greenhouse gas emissions – large-scale fossil fuels extraction – might create environmental stress and vulnerabilities that fall within the prohibition against severe, widespread and long-term damage to the environment. It is true that under the customary rule reflected in Article 35 of Additional Protocol I (AP I), the threshold for this prohibition is extremely high,Footnote 104 and there is no doubt that the direct addressees are warring parties engaged in hostilities. However, the threshold is less high under other regimes, and the ILC seems to adopt such less strict criteria in the context of pillage of natural resources in its Draft Principles, referring to “illegal exploitation of natural resources that has caused severe environmental strains in the affected areas”.Footnote 105
Moreover, the principles of proportionality and precaution, as applicable to warring parties, rest on the objective of avoiding war-related severe environmental damage.Footnote 106 In many contemporary conflicts – especially in NIACs – corporations have taken advantage of the fragile conflict context, characterized by the absence of the rule of law, public institutions and regular State mechanisms, to loot natural resources systematically.Footnote 107 In other cases, they have taken advantage of this fragile context to engage in massive pollution activities.Footnote 108 IHL offers only a little ground for corporate obligations on these issues; complementarity with other regimes therefore becomes critical. Prevention and precaution are general principles of IEL that may bind companies.Footnote 109 For instance, large-scale land acquisitions – often called land grabs – may violate communities’ and peasants’ rights to land, food, development or cultural heritage.Footnote 110 In both NIACs and IACs, the land is an “object” necessary for the civilian population's survival.Footnote 111 As pointed out by the ICRC, massive displacements or expulsions for corporate activities such as extraction can be considered “closely linked to an armed conflict” and could give rise to criminal and civil legal liabilities.Footnote 112 Moreover, environmental rules on the limitation of greenhouse gas emissions have direct effects on companies operating both in peacetime and in conflict situations. Finally, as pointed out above, the liability of private actors for pollution has long been recognized under various environmental instruments at the international and regional levels.
The prohibition of the use of certain means of war
IHL prohibits using certain types of weapons that cause grave environmental damage.Footnote 113 The question therefore arises as to what extent such an obligation could be transposed on corporations. The direct use of these prohibited means falls outside most business activities unless the business entity is directly involved in hostilities; nonetheless, corporations are often involved in manufacturing, transporting and trading these means of war.Footnote 114 It is argued that they bear legal obligations in this context due to their potential contribution to using such environmentally harmful weapons. The fact that business entities are obligated not to facilitate warring parties in utilizing certain types of weapons is not disputed under international law, but one must distinguish between the manufacture and sale of prohibited weapons, on the one hand, and the manufacture and trade of conventional arms used to commit war crimes, on the other. This picture can prove even more complex as it may involve manufacturing only a part of a prohibited weapon or manufacturing different equipment that can be made into a prohibited weapon. Be that as it may, manufacturing and selling prohibited weapons is illegal, and prohibited weapons that adversely impact the environment would fall under this category.
However, a fair controversy exists around selling conventional arms to end-users who use them to commit international crimes, including environmental ones. The Nuremberg legacy on this issue is ambiguous,Footnote 115 but despite such ambiguities, the principle that business entities could be held liable for their business operations that serve the commission of a crime was not at issue at Nuremberg. The US Military Tribunal suggested that the obligation not to assist in the commission of war crimes was nothing “but an application of general concepts of criminal law”, implying that furnishing the lethal weapon for the commission of a crime is in itself criminal.Footnote 116 Perhaps more complex was the evidence of intention (mens rea); departing from previous cases, later cases before Nuremberg tribunals considered that the manufacture and sale of conventional weapons were not criminal per se. Still, one legitimate concern is whether producing and selling a conventional weapon whose use can only lead to dramatic environmental consequences is lawful.Footnote 117
Many IHL treaties prohibit certain weapons that are harmful to the environment. While a few of them only proscribe using such weapons, the scope of application of many others is large enough to include activities such as manufacturing and sale. In our view, this speaks directly to business entities involved in such production and selling activities. A good illustration is the 1972 Biological Weapons Convention, which prohibits, without exception, “the development, production, stockpiling or any other possession of microbial agents, toxins and weapons, as well as equipment or means of delivery designed to use these agents or toxins for hostile purposes or in armed conflict”.Footnote 118 IHL conventions on landmines provide another example: the 1997 Ottawa Convention prohibits any activity prohibited by the Convention undertaken by individuals.Footnote 119 Although the role of States is critical in this context, such prohibitions can only be regarded as being applicable to any entity. Even regarding more conventional arms, concerns can be raised about trading certain arms when there is a particular risk that they will assist in perpetuating environment-related war crimes.Footnote 120 In some situations, such prohibitions on the sale or transfer of arms by private individuals or entities were recalled and imposed by the UN Security Council.Footnote 121
Due diligence
Corporate due diligence is undoubtedly the most impactful outcome of the UNGPs. It was designed as a critical tool for corporations to discharge their human rights “responsibilities”. Accordingly, business enterprises should have policies and processes that include a human rights due diligence process aimed at identifying, preventing, mitigating and accounting for how they address their impacts on human rights.Footnote 122 The meaning and scope of corporate due diligence in the UNGPs has raised some controversies;Footnote 123 however, there is a general agreement that due diligence consists of a four-steps process namely (1) identifying and assessing actual and potential human rights impact, (2) integrating and acting upon these findings, (3) tracking the effectiveness of actions taken, and (4) communicating how impacts are addressed. The UNGPs do not expressly mention environmental due diligence, but there is no doubt that the concept encompasses environmental concerns.Footnote 124 Due diligence is of an integral nature which must cover all types of risks anticipatively.
Moreover, due diligence is an ongoing process throughout the life cycle of a project or business activity. Regardless of its normative status under the UNGPs, corporate due diligence has recently gained “momentum”, especially in European regional and domestic legislations, with a strong emphasis on its “mandatory” character.Footnote 125 Although this development may suggest the opposite, it is submitted that corporate due diligence is already mandatory under (international) law. It is so simply because, as a standard of conduct, due diligence is expected from any legal operator in any legal system.Footnote 126 The Security Council has often stressed the existence of due diligence obligations in some situations.Footnote 127 According to the ILC,Footnote 128 States must ensure that business enterprises
exercise due diligence with respect to the protection of the environment, including in relation to human health, when acting in an area affected by an armed conflict. Such measures include those aimed at ensuring that natural resources are purchased or otherwise obtained in an environmentally sustainable manner.
Conflict situations imply some level of “heightened risks” of human rights violations and environmental harm. It has been therefore contended that due diligence in peacetime is arguably not similar to what it should be in an armed conflict, and that corporate entities are called upon to undertake a stricter version of due diligence in armed conflicts.Footnote 129 According to the UN Working Group on TNCs, because the risk of gross human rights abuses is heightened in conflict-affected areas, action by States and due diligence by businesses should be heightened accordingly.Footnote 130 The 2021 Draft Treaty on TNCs also refers to “enhanced human rights due diligence measures to prevent human rights abuses in occupied or conflict-affected areas”.Footnote 131 The ICRC further acknowledges this position in indicating that business entities must observe “extreme caution” and, therefore, that “heightened managerial care” concerning environmental issues is required from business enterprises operating in conflict zones.Footnote 132 This distinction undoubtedly has some merit as it alerts business entities to the difficulties associated with operating in high-risk situations. In our view, however, such a distinction has no added value from a conceptual point of view. In its legal character, due diligence always involves the idea of contextuality and proportionality (or, in other terms, scaling up): the higher the risk, the more careful and complex the due diligence process. It is no surprise that the ILC did not embrace this peacetime/wartime dichotomy.
Be that as it may, determining the critical parameters of environmental due diligence by corporations in conflict-affected zones may raise several questions – some of which lack clear-cut answers, as the concept of due diligence is complex,Footnote 133 and its confines are even more uncertain when applied to environmental issues.Footnote 134 Such difficulties turn due diligence into a highly context-dependent concept that is disobedient to grand generalizations, as suggested by the ICJ.Footnote 135 The following considerations, in our view, deserve specific attention in evaluating the parameters of due diligence. First, as an obligation, due diligence does not stand alone. It is associated with an initial – a sort of parent – obligation.Footnote 136 In the present case, this obligation requires corporations not to harm human rights and the environment. Due diligence is, therefore, in its essence, an obligation not to harm a right or interest protected by law through reckless conduct. In the context of environmental protection, one of the core aspects of due diligence is that it overlaps with the principle of prevention, though the two principles are not identical.Footnote 137 While prevention is only ex ante, due diligence applies continuously. However, prevention is critical regarding environmental protection, as some environmental impacts might be fatally irreparable. In that sense, environmental due diligence by corporations must always prioritize prevention.
Second, although backed by a specific obligation of result – the negative obligation not to cause harm – the relevance of corporate due diligence depends on the context. Due diligence applies only where there is a serious risk of causing harm; in other words, in some situations, what is asked from the company is not to act in due diligence but to comply immediately with a “do no harm” obligation. This happens where there is a certainty that a particular conduct will inevitably cause harm. One could think of massive hazardous waste dumped in a specific area or the sale of prohibited weapons – in these situations, the obligation imposed on the duty bearer is not a due diligence obligation because there is no “risk” per se but rather a certainty that harm will be caused. It is an obligation of result expected from the duty bearer, and due diligence as an obligation of conduct does not play out in this instance. On the contrary, due diligence implies some level of remoteness vis-à-vis the risk at stake. Therefore, its operation closely depends on the company's size and the supply chain's scale. Although the UNGPs explain that due diligence applies to all companies, the closer to the violation, the less relevant due diligence becomes. Perhaps for this reason, Ruggie has admitted that “for small companies, due diligence typically will remain informal”.Footnote 138
This underlines another critical character of the due diligence obligation when applied to corporations: it requires, from the duty bearer, a certain level of control over the source of the risk. It makes due diligence essential, although complex in the supply chain. As indicated above, for instance, the sale of some weapons that are harmful to the environment may involve different business entities in the supply chain, and there is an “objective” risk of human rights and environmental abuses from third parties in the supply value chain. The difficulty, therefore, is how to delineate the scope of the due diligence obligation within the supply chain. The 2003 UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights had suggested that a parent company's due diligence obligation extends throughout its “sphere of influence”.Footnote 139 The UNGPs and the Draft Treaty on TNCs speak of “business relationships”.Footnote 140 None of these concepts seems precise, prompting the need to define an appropriate criterion to determine the reach of the due diligence obligation in the supply chain. Neither de jure control nor the concept of effective control as established under the law of State responsibility for the purpose of attribution would be satisfactory: the first will be too formalistic, and the second will be inappropriate to the nature of due diligence.Footnote 141 The de facto control criteria adopted by the ILC seem more realistic, but one may wonder what relevant elements can establish such de facto control, especially when companies are generally reluctant to disclose information.Footnote 142 In situations where the risk of violation is too high, leading to impossible control over its source, strict due diligence must imply temporary suspension or disengagement.Footnote 143 This is precisely the case in some conflict situations where there is no reasonable prospect of controlling the source of the risk. Irrespective of its final judicial outcome, the Lafarge case is strikingly illustrative of the quasi-impossibility in some situations of continuing business without contributing to the commission of systematic violations of fundamental rules of international law.Footnote 144 It is also based on the consideration that armed trading with warring parties in some conflicts where widespread human rights violations have occurred has recently raised serious concerns.Footnote 145
Finally, human rights and environmental due diligence imply communication, access to information by rights holders and access to remedy when damage is caused to the environment. Both the UNGPs and the Draft Treaty on TNCs provide that business corporations must communicate regularly and in an accessible manner to stakeholders, “particularly to affected or potentially affected persons, to account for how they address through their policies and measures any actual or potential human rights abuses that may arise from their activities including in their business relationships”.Footnote 146 The company's communication requirement and access to information by other stakeholders in the due diligence process are essential for at least two reasons. First, communication with relevant stakeholders is critical in assessing the potential impacts of business activities and integrating findings into decision-making. Second, in as much as due diligence is about addressing risks, the vulnerability of its beneficiaries is a core parameter of its tailoring. Such vulnerability might be assessed through communication; access to information by the beneficiaries is therefore critical in making this communication possible and meaningful. This includes specific obligations such as environmental impact assessments, an obligation of consultationFootnote 147 and consent, especially in situations where indigenous people are affected.Footnote 148 Regarding access to remedy, it is a corollary of due diligence that when the company fails to adopt the appropriate standard of conduct required, it should provide remedial measures.Footnote 149
Existence of enforcement mechanisms as a corollary to BEOAC
It is now undisputed that business entities can negatively and substantially affect the environment in the conduct of their global activities,Footnote 150 including in the context of armed conflict.Footnote 151 It is equally well known that environmental damage in armed conflict can amount to war crimesFootnote 152 and other human rights violations.Footnote 153
Nevertheless, holding business entities accountable for environmental harm during armed conflict presents uneasy challenges. There is too often an accountability gap. The liability of business entities as legal persons has not been included in the main treaties addressing international crimes at the national level, including the 1949 Geneva Conventions and AP I, and significant variation has occurred over the years regarding enforcement practices within international and domestic criminal courts and tribunals. Corporations’ criminal liability has not featured significantly in international criminal courts and tribunals; in most cases, criminal responsibility for crimes under international law concerns individuals.
The first time corporate criminality was addressed in court was directly after the Second World War.Footnote 154 The Nuremberg Charter extended the International Military Tribunal's jurisdiction to representatives of groups and organizations involved in the war effort. Articles 9 and 10 of the Charter authorized the Tribunal to declare any group or organization as a criminal organization during the trial of an individual.Footnote 155 This could lead to the trial of other individuals for membership in the organization. Although several such organizations were designated during the Tribunal's and subsequent proceedingsFootnote 156 under Control Council Law No. 10,Footnote 157 only natural persons were tried and punished.
Even though corporations were not prosecuted as legal entities per se, however, it has been evidenced that criminal charges against them were considered entirely permissible, even if not ultimately used.Footnote 158 The corporate and associational criminal liability concepts were seriously explored but rejected for political rather than legal reasons.Footnote 159 During the prosecutions, significant references were made to the major criminal role played by businesses, revealing an underlying implication that the corporations for which the industrialists worked had also breached IHL.Footnote 160
Contemporary moves towards corporate accountability for atrocities refer to the Nuremberg criminal organizations doctrine. For example, early proposals to include corporations in the statutes of international criminal courts and tribunals were modelled on Articles 9 and 10 of the Nuremberg Charter. While the ICTY and the International Criminal Tribunal for Rwanda did not have criminal jurisdiction over legal persons, the diplomatic discussions during their establishment reveal that despite the States’ unwillingness to formalize corporate criminal responsibility, they desired to apply international criminal law to particular actions by legal persons.Footnote 161 The Rome Conference of 1998, which would lead to the adoption of the Rome Statute of the ICC, represents the latest attempt to move international criminal law toward identifying criminal liability in legal persons. The draft statute presented at the beginning of the Rome Conference provided that the ICC would have jurisdiction over legal persons “when the crime was committed on behalf of such legal persons or by their agencies or representatives”.Footnote 162 However, this possibility was removed during the last stage of the negotiations. The drafters of the Rome Statute noted that “[t]here is a deep divergence of views as to the advisability of including criminal responsibility of legal persons in the Statute”.Footnote 163 Thus, although proposals for including a provision on such responsibility were made,Footnote 164 the Statute ultimately did not contain such a provision. Only natural persons may be tried before the ICC, even though the crimes they may be convicted of include those committed “by a group of persons acting with a common purpose”.Footnote 165
Nevertheless, the lack of jurisdiction by most international criminal courts and tribunals over corporate crime does not relieve corporations of their international legal obligations. This is further affirmed by two major developments in international criminal law. Firstly, the 2014 African Union Protocol on Amendments to the Statute of the African Court of Justice and Human Rights (ACJHR), or Malabo Protocol, provides jurisdiction to the reconstituted ACJHR over legal persons for international crimes,Footnote 166 including environmental crimes.Footnote 167 According to Article 46C(1), “[f]or the purpose of this Statute the Court shall have jurisdiction over legal persons, with the exception of States”. Thus, apart from jurisdiction over natural persons (Article 46B), the ACJHR will also have the power to adjudicate legal persons’ responsibility. This provision on corporate liability for international crimes is the most important innovation of the Malabo Protocol, compared to the Rome Statute and other international criminal tribunals’ statutes.
Secondly, compelling insights regarding the liability of legal persons for international crimes have emerged from recent developments in international criminal law. The ILC Draft Articles on Prevention and Punishment of Crimes against Humanity (ILC Draft Articles),Footnote 168 adopted on the second reading in 2019, include a provision on the liability of legal persons for crimes against humanity. Under Draft Article 6(8), “each State shall take measures, where appropriate, to establish the liability of legal persons”. Besides this, the Ljubljana–The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and Other International Crimes (MLA Convention),Footnote 169 adopted on 26 May 2023, also includes a provision on the liability of legal persons. Article 15(1), which is built on Article 6(8) of the ILC Draft Articles, states that “[e]ach State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons”. Article 15(4) of the MLA Convention further underlines that “[e]ach State Party shall, in particular, ensure that legal persons held liable … are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions”.
Domestic courts can also contribute to enforcing corporations’ environmental obligations. As the ILC has rightly highlighted, “criminal liability of legal persons concerning international crimes has become a feature of the national laws of many States in recent years”.Footnote 170 Such liability sometimes exists concerning international crimes.Footnote 171 The acts leading to such liability are committed by natural persons who act as officials, directors, officers, or through some other position or agency of the legal person.Footnote 172 This means that business entities are, at least in theory, already subject to duties under codified domestic variants of international criminal law.Footnote 173
Although no corporate prosecutions under domestic criminal laws have yet proceeded to any substantial consideration on the merits, some indicators demonstrate that national prosecutions may pursue such cases in the right circumstances.Footnote 174 For example, in October 2004, Congolese troops conducted violent reprisals for a minor uprising in the small town of Kilwa in the DRC, engaging in summary executions, rape, torture, pillaging and other human rights atrocities. Allegations that Anvil Mining, an Australian mining company,Footnote 175 provided logistical assistance for the military's actions led to calls for the company and its employees to face legal responsibility.Footnote 176 In 2005, the Australian Federal Police investigated Anvil Mining for its role in massacres over a few days in the DRC.Footnote 177 However, the investigation was soon dropped. It has been argued that this decision resulted from the fact that a deeply questionable military trial in the DRC failed to find anyone accountable.Footnote 178
As another example, in 2015, Swiss investigators looked into the purported role of Argor-Heraeus, one of the world's leading gold refining companies, in pillaging natural resources from the DRC. It was contended that this company had refined gold allegedly looted from the DRC by individuals and companies lower down in the global supply chain.Footnote 179 This case brought to light an interesting discussion as to whether the company's critical role in enabling the gold to be sold on the international market constituted the commission of, or complicity in, pillage as a war crime.Footnote 180 Due to the lack of evidence regarding this issue, Swiss prosecutors determined that there was no case to answer.Footnote 181
A series of French cases help demonstrate domestic legal bodies’ capacity to impose accountability for corporate violations of IHL and other gross human rights violations.Footnote 182 Perhaps the most important is that of Lafarge, a French cement company.Footnote 183 In June 2018, this company, alongside some corporate executives, was indicted by French investigative judges for the role of its Syrian subsidiary in financing terrorism and complicity in crimes against humanity.Footnote 184 However, on 7 November 2019, the French Court of Appeals in Paris dropped the crimes against humanity charges against the company, maintaining only the financing of terrorism charges.Footnote 185 The Appeals Court found that Lafarge's “arrangements” with the so-called Islamic State group were merely intended to keep the plant running and did not manifest an intention on the part of Lafarge to associate itself with the crimes perpetrated.Footnote 186 This decision was appealed at the French Court of Cassation; on 7 September 2021, it brushed aside the Appeals Court and unequivocally asserted that “it is irrelevant that the accomplice acts intending to pursue a commercial activity, a circumstance that is part of the motive and not the intentional element”.Footnote 187 The Court stated that under French criminal law, motives bear no relevance in establishing (or negating) intent, thus entailing that a company cannot hide behind its business aims to escape liability.Footnote 188
Finally, the landmark trial initiated on 5 September 2023 at the Stockholm District Court against the leaders of Lundin Oil ABFootnote 189 – a multinational company now known as Orrön Energy – for complicity in war crimes committed in the conduct of the company's business activities in SudanFootnote 190 during the devastating civil conflict that pitted the government against armed groups in the Southern region between 1983 and 2005 further evidences the extent to which a corporation can be charged with violating IHL.
While this section concentrates on criminal enforcement mechanisms, it does not under-appreciate the potential of redress procedures for environmental harms before domestic civil courts.Footnote 191 For example, a recent report by the International Commission of Jurists on corporate complicity in international crimes pointed out that civil liability gives more latitude than criminal liability.Footnote 192 In addition, non-judicial grievance mechanisms, as contemplated under the UNGPs,Footnote 193 could be used. Administrative sanctions may also be used in specific cases – for instance, regarding the sale of prohibited weapons, administrative enforcement mechanisms can operate ex ante through the refusal by States to grant authorizations to companies involved in such conduct or ex post by withdrawing authorizations and/or applying penalties depending on the types of conduct.Footnote 194
Concluding remarks
While the role of business entities in conflict situations is increasingly being underscored, there is a lack of articulation of what businesses’ obligations are regarding the protection of the environment. The central objective of this contribution was to shed light on the existence and the nature of environmental duties imposed on business entities in conflict situations. The argument that private corporations bear legal obligations under international law is far from being accepted in dominant discourses in international law. Therefore, this point needed to be demonstrated from a conceptual perspective without going beyond the scope of the present contribution. In that regard, the contribution focuses on the legal sources providing for such environmental obligations.
Given that IHL is the primary regime with direct relevance in armed conflict situations, this paper has highlighted the potential and limits of its rules in addressing corporate conduct during armed conflict. However, IHL alone is not enough, particularly regarding environmental matters during armed conflict. The paper has therefore explored other sources and has demonstrated their ability to provide a complementary framework in articulating legal obligations on corporations. The assessment has been based on a systemic analysis of IHL and other branches of international law, particularly international human rights, environmental and criminal law.
After clarifying the origin of these obligations under international law, the article has discussed their nature. This has led to a twofold categorization consisting of the “do no harm” obligation on the one hand and the “due diligence” obligation on the other. While the former is a negative obligation that has solid ground in various sources of international law applicable – or transposable – to business entities, the latter is an obligation of means that is only relevant in specific circumstances but is critical not only in preventing harm but also in the continuous operation of the business. In modern business, characterized by large supply chains, due diligence is crucial in preventing or responding to environmental violations. However, this does not preclude legal responsibility or liability. As the article has demonstrated, the mere existence of these responsibility mechanisms, especially at the domestic level, corroborates that legal obligations applicable to business entities exist. The ultimate objective of this paper has been to contribute to closing what could be seen as a gap in the legal framework, as illustrated by the silence of the ILC Draft Principles and ICRC Guidelines on the issue of the current environmental obligations imposed on private companies during armed conflict.
Open access
