Improving the Accountability of Corporations for Violations of International Humanitarian Law through Soft Law Instruments

By Régis Bismuth, Ph.D.

Posted March 2nd, 2010

Recent developments have demonstrated the growing outreach of the international humanitarian law (“IHL”) framework for corporations, and consequently its possible international responsibility corollaries. Indeed, modern armed conflicts involve more and more non-state actors, notably private military forces, but also implicate, although indirectly, traditional corporations carrying out economic activities, notably in the field of extraction and/or commercial exploitation of natural and mineral resources. Several acts conducted within the framework of business activities during an armed conflict may eventually fall under the scope of international humanitarian law and constitute war crimes. A recent study of the International Committee of the Red Cross (ICRC) mentions the following: unlawful taking of property, forced labor, displacement of populations, severe damage to the environment, and the manufacture and trading of prohibited weapons. Although it should be mentioned that transnational companies are not the worst perpetrators, the trend of their involvement in contentious activities in the context of an ongoing armed conflict raises the legitimate question of the responsibility of these legal entities.

Beyond a structural lack of criminal accountability, alternative channels of responsibility need to be explored as they suggest a growing concern of the international community about the implications of corporations becoming increasingly involved in armed conflict

Some international organizations, notably the UN and the Organization for Economic Cooperation and Development (OECD), have taken several initiatives aimed to improve the corporate compliance with rules of fundamental IHL. These initiatives focus mainly on multinational corporations and target, in the context of IHL, corporate conduct in developing countries. Although the standards promulgated by the UN and the OECD are not per se binding and are not accompanied with judicial accountability mechanisms, they tend to develop a body of soft norms playing a great role in practice.

Among the leading soft law standards for corporations are those promulgated by the OECD. Since 1976, the OECD has developed “Guidelines” for multinational enterprises (the latest version released in 2000), which constitute a comprehensive instrument viewed as the core international normative framework for corporate behavior. As such, these guidelines have a broader scope than IHL as they deal with issues such as disclosure, taxation and competition. However, they are governed by the general principle that enterprises should “[r]espect the human rights of those affected by their activities consistent with the host government’s international obligations and commitments” (OECD Guidelines, art. II(2).) and include rules on employment, environment and bribery, all of them being vehicles for the integration of IHL rules. An illustration of the outreach of these Guidelines in an IHL context may be found with the report of the UN Panel of Experts on the “Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo” that used the OECD standards as a yardstick. The panel listed the corporations considered to be in violation of the OECD Guidelines and recommended, inter alia, that “Governments and the UN should co-operate fully with investigations which are being launched by the ICC into, inter alia, the complicity of business in war crimes in the DRC” (for the purpose of holding individuals accountable under international criminal law), highlighting the potential connections between the Guidelines and the implementation of IHL in the context of economic activities.

More recently, in 2006, the OECD developed a “Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones” supplementing the Guidelines of 2000, in order to provide a stronger guidance for corporations in situations of government failures. The innovative aspect of this instrument lies in its explicit reference to IHL, and notably in the scope of application of this instrument as it indicates that “weak governance zones can be identified by … serious violations of human rights and international humanitarian law and endemic violent conflict … involving potentially diverse combatants.” Special attention should therefore be paid to this new instrument in the coming years.

The issue of corporate responsibility has also been put on the agenda of the UN. Among the latest initiatives aimed at better framing corporate activities having human rights and IHL negative impacts, the “Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights” adopted in 2003 by the UN Sub-Commission on the Promotion and Protection of Human Rights has reaffirmed and clarified the duty of corporations to respect IHL norms, notably concerning the security of persons and the rights of workers. Although this instrument was not adopted by the Commission on Human Rights, the Commission requested the Secretary General to appoint a special representative on this issue with the mandate, inter alia, “[t]o identify and clarify standards of corporate responsibility and accountability for transnational corporations … with regard to human rights” and “[t]o research and clarify the implications for transnational corporations … of concepts such as ‘complicity’ and ‘sphere of influence’.” As part of this mission, the recent reports published by the special representative John Ruggie have drawn up an inventory of the most relevant soft law instruments with their compliance and accountability mechanisms, including the OECD Guidelines, highlighting how soft law has strengthened standards of corporate behavior in terms of compliance with IHL and illustrating the growing concern of the international community about contentious corporate activities in the armed conflict context.  

For a detailed discussion about this issue, see, Régis Bismuth, “Mapping a Responsibility of Corporations for Violations of International Humanitarian Law Sailing Between International And Domestic Legal Orders”, Denver Journal of International Law and Policy, vol. 38, n° 2, pp. 203-226 (forthcoming, March 2010).

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