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What every Australian business needs to know about international humanitarian law

Australian Red Cross has partnered with RMIT University to produce a practical guide to help businesses navigate their risks, rights and responsibilities under international humanitarian law (IHL).

At first glance, it can be hard to see how IHL, also known as the laws of war, is relevant to Australian businesses. Some people think the Geneva Conventions – which form the cornerstone of IHL – only relate to governments and humanitarian workers, not private industries like mining and energy companies.

But IHL is an important and often overlooked consideration in discussions about responsible business practices in complex environments. And a diverse range of businesses face real ethical and legal risks in the context of armed conflict.

For companies doing business in conflict-affected regions the principle of ‘do no harm’ should be at the core of all operations.

These businesses have the power and influence to significantly impact – positively and negatively – the communities in which they operate. A genuine application of the ‘do no harm’ principle should involve a proactive understanding, honouring and promotion of IHL in their business operations.

Australian Red Cross is committed to helping protect people and communities impacted by war and armed conflict. This commitment complements the global business and human rights movement, which demands businesses underpin their operations with respect for human rights.

Business and human rights initiatives, like the United Nations Guiding Principles on Business and Human Rights and the Voluntary Principles on Security and Human Rights, highlight the increased risk of human rights abuses in conflict-affected regions. Both sets of principles explicitly call on businesses to respect IHL when operating in such situations.

Guidance and implementation tools, such as the OECD Guidelines for Multinational Enterprises, also call on companies to uphold IHL when conducting business in conflict-affected countries but don’t go into specifics.

Last year, closer to home, important amendments were made to the ASX Corporate Governance Principles and Recommendations (Fourth Edition). These came into effect on 1 January 2020. The amendments make important changes to the best-practice guidance around disclosure of environmental, social and governance risks.

As a result, under Recommendation 7.4, listed entities should now disclose if they have ‘any material exposure to environmental or social risks’ and must provide information about how they will manage those risks. Included in the definition of social risks are ‘risks associated with the entity or its suppliers engaging in…aiding human conflict’.

Fulfilling this corporate governance guidance will require an understanding of IHL – the law applicable during conflict – and the management and mitigation of the risks associated with doing business in armed conflict.

Our new guide, ‘Doing Responsible Business in Armed Conflict’, explains the importance and relevance of IHL to the Australian private sector and the difference between IHL and human rights law.

It’s a clear and practical introduction to IHL that will help businesses incorporate relevant aspects of the law into their policies and practices. The good news is, many existing human rights policies, for example on risk management and training, already provide the framework to implement these additional rules.

A lack of awareness of IHL exposes businesses to greater risks, so is critical they take steps now. This will help mitigate the operational, reputational and legal risks associated with doing business in conflict zones and encourage businesses to take further responsibility for protecting the lives and dignity of the local communities where they work.

This guide is recommended for businesses that have a presence in conflict-affected regions or who work with, or contract the services of, private and public security forces in fragile areas.

Security personnel, in particular, need to be able to identify when and how the legal obligations governing conduct in armed conflict displace their usual use of force standards. Specialised IHL rules come into effect here – for example relating to the legality of weapons used, the provision of equipment and services to certain groups connected to the conflict, or the legal obligations flowing from directly participating in hostilities.

Many existing training templates and modules used for corporate security and human rights training do not comprehensively address IHL or these use of force issues. Companies should consider how they might be able to supplement these training packages with IHL considerations to ensure all risks and responsibilities are addressed.

Complex analysis is needed in armed conflict environments – for instance, to clarify when the threshold of armed conflict has been met, to identify the parties involved in the conflict or to determine the nexus of a company’s actions to that conflict. Legal advice should be obtained to resolve these concerns. 

In the meantime, our guide outlines relatively simple measures businesses can and should take to improve their IHL compliance.

These include:

  • Integration: developing an implementation plan for integrating IHL into current compliance and management systems. Many businesses already have these frameworks in place to articulate their human rights commitments. Complementing these policies with IHL commitments demands little time and resources but will go a long way to prepare and protect a business from the specific risks associated with armed conflict.
  • Risk management: identifying and evaluating the IHL and conflict-related risks connected to the presence of business operations in a particular area.  If the company is not active or present in a known conflict area it should still consider putting preparatory and preventative measures in place.
  • Training: introducing or integrating IHL into all human rights training, particularly security-based training, and making this compulsory for all managers, supervisors and personnel of contracted private and public security forces.

Australian Red Cross has a mandate to ensure all Australians know about and respect IHL. Together with RMIT University, we are committed to working with Australian businesses, particularly those working in conflict-prone and conflict-affected regions, to ensure they have the knowledge and tools to align their practices with IHL. We hope this guide helps to encourage and facilitate this.

By Fauve Kurnadi and Jonathan Kolieb

Fauve Kurnadi is the Legal Adviser – Academic and Private Sector Engagement in the International Humanitarian Law Program at Australian Red Cross.

Dr Jonathan Kolieb is a Senior Lecturer at the Graduate School of Business and Law at RMIT University and a member of the Australian Red Cross International Humanitarian Law Advisory Committee in Victoria.

To find out more contact Fauve Kurnadi at fkurnadi@redcross.org.au.

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