International humanitarian law

What Is International Humanitarian Law?

International humanitarian law (IHL) is a body of public international law that sets out rules to limit the effects of armed conflict for humanitarian reasons. It falls under the broader umbrella of Corporate Governance and Ethics within the financial sector, as businesses and financial institutions operating in or with ties to conflict-affected regions must adhere to its principles. International humanitarian law protects individuals who are not, or are no longer, directly participating in hostilities, such as civilians, medical personnel, and prisoners of war, and imposes restrictions on the methods and means of warfare.¹⁵,¹⁴ Also known as the laws of armed conflict or the laws of war, international humanitarian law aims to strike a balance between military necessity and humanitarian concerns to reduce human suffering.,¹³

History and Origin

The roots of international humanitarian law can be traced back to ancient civilizations and religious principles, where certain customs and rules governed warfare. The universal codification of international humanitarian law began in the 19th century, driven by the increasing brutality of modern warfare. A pivotal moment was the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, which emerged from the efforts of Henry Dunant after witnessing the Battle of Solferino. This led to the founding of the International Committee of the Red Cross (ICRC) in 1863.,¹²

The core principles of international humanitarian law were significantly expanded and formalized with the adoption of the four Geneva Conventions of 1949, which are nearly universally ratified by states worldwide. These conventions have been further supplemented by the Additional Protocols of 1977 and 2005.¹¹,¹⁰ These legal treaties, alongside customary law and general principles of law, form the bedrock of international humanitarian law today.⁹

Key Takeaways

• International humanitarian law is a set of rules that seeks to limit the effects of armed conflict.
• It protects non-combatants and those no longer participating in hostilities, such as civilians, the wounded, and prisoners of war.
• IHL imposes restrictions on the means and methods of warfare.
• Serious violations of international humanitarian law can be classified as war crimes.
• Its principles are crucial for businesses and financial institutions engaged in due diligence and risk management in conflict-affected regions.

Interpreting International Humanitarian Law

International humanitarian law is interpreted and applied through various legal frameworks and practices to ensure its adherence in armed conflicts. It mandates that parties to a conflict distinguish between combatants and civilians, and between military objectives and civilian objects. Attacks must be directed only against military objectives, and all feasible precautions must be taken to avoid or minimize incidental harm to civilians and civilian property. The principle of proportionality is central to this, dictating that any anticipated civilian casualties or damage must not be excessive in relation to the concrete and direct military advantage expected.

For businesses and financial entities, interpreting international humanitarian law means understanding the specific risks associated with operations or investments in conflict zones. This involves assessing the potential for complicity in violations and ensuring that their activities do not inadvertently contribute to or benefit from such violations. Companies are increasingly expected to integrate IHL considerations into their broader compliance frameworks and responsible business conduct policies.

Hypothetical Example

Consider "Global Investments Corp.," a hypothetical asset management firm specializing in emerging markets. Global Investments Corp. is evaluating a significant investment decision in a developing country, "Terra Nova," which is experiencing an ongoing internal armed conflict. The firm's standard socially responsible investing (SRI) policy requires a thorough assessment of human rights and environmental impacts.

However, recognizing the specific nuances of conflict, Global Investments Corp. goes beyond typical human rights assessments to specifically incorporate international humanitarian law. They examine whether the local entities they plan to invest in are directly or indirectly involved in activities that could violate IHL, such as supporting armed groups, engaging in forced labor, or causing disproportionate harm to civilian populations through their operations.

For example, if a potential investment involves a resource extraction company in Terra Nova, Global Investments Corp. would investigate if the company's security forces are adequately trained in IHL principles, if their operations lead to displacement of civilians without proper humanitarian consideration, or if their payments to local authorities are inadvertently financing armed factions. By applying an IHL lens, the firm aims to mitigate not only financial and reputational risks but also their potential contribution to human suffering.

Practical Applications

While not a financial metric, international humanitarian law has increasing relevance for financial entities, particularly in the realm of Environmental, Social, and Governance (ESG)) investing and corporate responsibility. Financial institutions and corporations with global operations, supply chains, or investment portfolios in conflict-affected areas must consider IHL to manage various forms of risk:

• Reputational Risk: Companies linked to violations of international humanitarian law can suffer severe reputational damage, impacting consumer trust, investor confidence, and talent acquisition.
• Legal and Legal Liability: Businesses and their personnel can face civil or criminal charges under national and international laws for complicity in IHL violations, including war crimes.⁸,⁷ This can lead to significant financial penalties and operational disruptions.
• Operational Risk: Conflicts can disrupt business operations, damage assets, and endanger staff. Understanding and respecting IHL can help protect civilian personnel and assets, and guide conduct in such environments.⁶
• Ethical Investing and Stakeholders Concerns: Investors, particularly those focused on ethical and responsible investing, increasingly scrutinize how companies manage their exposure to armed conflict and adhere to IHL principles. Organizations like the Australian Red Cross have highlighted the need for the financial sector to deepen its understanding of international humanitarian law.⁵

Businesses are encouraged to conduct heightened human rights due diligence in conflict-affected contexts to identify, prevent, mitigate, and account for potential adverse impacts on human rights and IHL.⁴

Limitations and Criticisms

Despite its foundational role in regulating armed conflicts, international humanitarian law faces significant limitations and criticisms. A primary challenge is the pervasive issue of non-compliance and widespread violations by warring parties, leading to attacks on civilians, humanitarian workers, and essential infrastructure.³ The effectiveness of international humanitarian law relies heavily on the willingness of states and non-state armed groups to adhere to its rules, as well as the capacity of international bodies to enforce them.

Another limitation stems from the evolving nature of armed conflict, including the rise of non-state armed groups, cyber warfare, and autonomous weapons systems, which present new challenges to the application and interpretation of existing IHL frameworks. For businesses, a key criticism is the perceived lack of clear, direct obligations under IHL, often leading to a knowledge gap in the financial sector regarding its direct applicability.² While international guidelines recommend that businesses respect IHL, these are often not legally binding, creating ambiguities regarding corporate accountability for indirect involvement in violations.¹

International Humanitarian Law vs. Human Rights Law

International humanitarian law (IHL) is often confused with Human Rights Law, but they are distinct bodies of public international law, though they are complementary.

While IHL comes into effect during armed conflicts, HRL continues to apply, though some rights may be derogated from in exceptional circumstances. IHL focuses on conduct during war (jus in bello), whereas HRL provides a broad framework for individual protections. Understanding the distinction is crucial for entities, including financial firms, when assessing their responsibilities and potential liabilities in various global contexts.

FAQs

What are the main principles of International Humanitarian Law?

The main principles of international humanitarian law include distinction (between combatants and civilians), proportionality (avoiding excessive civilian harm), military necessity, and humanity. These principles guide the conduct of hostilities and the protection of those not involved in fighting.

Does International Humanitarian Law apply to private companies?

While international humanitarian law traditionally binds states and armed groups, it increasingly has implications for private companies, especially those operating in conflict-affected areas. Businesses have a responsibility to respect IHL and can face legal and reputational risks for complicity in violations. This falls under broader expectations of corporate social responsibility.

What are the Geneva Conventions?

The Geneva Conventions are a series of four treaties established in 1949 that form a cornerstone of international humanitarian law. They protect specific categories of people not taking part in hostilities, such as wounded and sick soldiers, prisoners of war, and civilians. Most countries worldwide have ratified them.

How does International Humanitarian Law relate to finance?

International humanitarian law relates to finance primarily through ESG investing and corporate conduct. Financial institutions and companies with operations or investments in conflict zones must consider IHL to mitigate legal, operational, and reputational risks, and to fulfill their responsibilities to stakeholders. This includes conducting heightened due diligence to avoid contributing to or benefiting from IHL violations.