What Are the Key Principles of International Humanitarian Law (IHL) Protecting Civilians and Property That Businesses Operating in Conflict-Affected Areas Near Japan Should Know?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

International Humanitarian Law (IHL), also known as the law of armed conflict or the law of war, is a set of rules seeking to limit the humanitarian consequences of armed conflicts. It aims to protect persons who are not, or are no longer, directly participating in hostilities, and to restrict the means and methods of warfare. For businesses operating in or near regions affected by armed conflict, including areas where geopolitical tensions might escalate, understanding the fundamental principles of IHL concerning the protection of civilians and civilian property is not merely an academic exercise—it is a critical component of risk management, ethical conduct, and legal compliance.

Foundations of International Humanitarian Law

The primary sources of modern IHL are:

  • The Four Geneva Conventions of 1949: These treaties provide extensive protections for specific categories of persons:
    • Geneva Convention I: Wounded and sick members of armed forces in the field.
    • Geneva Convention II: Wounded, sick, and shipwrecked members of armed forces at sea.
    • Geneva Convention III: Prisoners of war.
    • Geneva Convention IV: Civilians in times of war, including in occupied territories.
      These conventions are universally ratified, meaning they are binding on virtually every state in the world, including Japan.
  • The Additional Protocols of 1977:
    • Additional Protocol I (AP I) supplements the Geneva Conventions in the context of international armed conflicts (IACs).
    • Additional Protocol II (AP II) strengthens the protection of victims of non-international armed conflicts (NIACs).
      Many provisions of these protocols are also considered to reflect customary international law.
  • Customary International Humanitarian Law: Many IHL rules are binding on all states and parties to a conflict because they have become part of customary international law through widespread state practice and acceptance as law (opinio juris). The International Committee of the Red Cross (ICRC) has conducted a comprehensive study identifying numerous such customary rules.
  • The Hague Conventions of 1899 and 1907 and other treaties: These primarily address the permissible means and methods of warfare (often referred to as "Hague Law," as distinct from "Geneva Law," which focuses on protection).

IHL applies in situations of armed conflict, which are broadly categorized into:

  • International Armed Conflicts (IACs): Conflicts between two or more High Contracting Parties (States). This is outlined in Common Article 2 to the Geneva Conventions.
  • Non-International Armed Conflicts (NIACs): Armed confrontations occurring within the territory of a state between government armed forces and organized armed groups, or between such groups. Common Article 3 to the Geneva Conventions provides a foundational set of rules for NIACs, further developed by Additional Protocol II for conflicts reaching a higher threshold of intensity and organization.

It is crucial to distinguish armed conflicts from situations of internal disturbances, riots, or isolated acts of violence that do not meet the required threshold of intensity to trigger the application of IHL.

Core IHL Principles for Protecting Civilians and Civilian Property

Several fundamental principles of IHL are paramount for the protection of civilians and civilian property during armed conflict:

1. The Principle of Distinction

This is the cornerstone of IHL. Parties to an armed conflict must at all times distinguish between:

  • Civilians and combatants: Attacks may only be directed against combatants. Civilians are protected against direct attack unless, and for such time as, they take a direct part in hostilities.
  • Civilian objects and military objectives: Attacks must be strictly limited to military objectives. Attacking civilian objects is prohibited.

Article 48 of Additional Protocol I states: "In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

  • A combatant is generally a member of the armed forces of a party to the conflict (excluding medical personnel and chaplains).
  • A civilian is any person who is not a combatant. In case of doubt as to whether a person is a civilian, that person shall be considered to be a civilian (AP I, Art. 50).
  • Military objectives are defined as "those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage" (AP I, Art. 52(2)).
  • Civilian objects are all objects that are not military objectives (AP I, Art. 52(1)).

2. The Principle of Proportionality

This principle applies when an attack is directed against a legitimate military objective but may be expected to cause incidental harm to civilians or civilian objects. The rule of proportionality prohibits launching an attack "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (AP I, Art. 51(5)(b) and Art. 57(2)(a)(iii)). This requires a constant balancing act by military commanders.

3. The Principle of Precaution

Parties to a conflict must take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects (AP I, Art. 57). Key precautions include:

  • Doing everything feasible to verify that targets are military objectives.
  • Taking all feasible precautions in the choice of means and methods of warfare to avoid or minimize incidental harm.
  • Refraining from launching any attack which may be expected to violate the principle of proportionality.
  • Giving effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit.
    Additionally, parties must take all feasible precautions to protect the civilian population and civilian objects under their control against the dangers resulting from military operations (AP I, Art. 58), for example, by endeavoring to remove them from the vicinity of military objectives.

4. Prohibition of Indiscriminate Attacks

Indiscriminate attacks are prohibited. These include attacks:

  • Not directed at a specific military objective.
  • Employing means or methods of combat which cannot be directed at a specific military objective.
  • Employing means or methods of combat the effects of which cannot be limited as required by IHL, and consequently are of a nature to strike military objectives and civilians or civilian objects without distinction (AP I, Art. 51(4)).

Specific IHL Protections Relevant to Business Operations

Beyond these general principles, IHL provides specific protections for certain categories of persons and objects, which can have direct relevance for business operations in conflict zones:

Protection of the Civilian Population and Individual Civilians

The civilian population as such, as well as individual civilians, enjoy general protection against dangers arising from military operations and shall not be the object of attack (AP I, Art. 51(1)-(2)). Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

Protection of Civilian Objects

Civilian objects shall not be the object of attack or of reprisals (AP I, Art. 52(1)). This general protection applies to all business assets, infrastructure, and facilities, provided they do not become military objectives.

Specially Protected Objects and Installations

IHL accords heightened protection to certain types of objects and installations due to their critical importance for human well-being or their potential to cause widespread disaster if damaged:

  • Medical Units and Transports: Hospitals, clinics, medical vehicles, and aircraft exclusively assigned to medical purposes must be respected and protected in all circumstances and shall not be the object of attack (GC I, Art. 19-22, 35-37; GC IV, Art. 18-22; AP I, Art. 12-31). They are entitled to display the distinctive emblems (Red Cross, Red Crescent, Red Crystal). Businesses involved in healthcare or medical supply in conflict zones must be aware of these protections and ensure their facilities are clearly marked if eligible.
  • Cultural Property: The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocols, as well as Article 53 of AP I, provide for the safeguarding of and respect for cultural property (e.g., historic monuments, works of art, archaeological sites). Parties to a conflict must refrain from any act of hostility directed against such property. Businesses operating near cultural heritage sites must exercise extreme caution.
  • Objects Indispensable to the Survival of the Civilian Population (AP I, Art. 54): It is prohibited to attack, destroy, remove, or render useless objects indispensable for the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive. This has implications for businesses involved in agriculture, food processing, and water supply.
  • Works and Installations Containing Dangerous Forces (AP I, Art. 56): Dams, dykes, and nuclear electrical generating stations shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Operators of such facilities, or businesses located near them, need to be aware of these special protections.
  • The Natural Environment (AP I, Art. 35(3) and Art. 55): Care must be taken in warfare to protect the natural environment against widespread, long-term, and severe damage. It is prohibited to employ methods or means of warfare which are intended or may be expected to cause such damage and thereby prejudice the health or survival of the population. This is relevant for extractive industries and other businesses with significant environmental footprints.
  • Prohibition of "Human Shields" (AP I, Art. 51(7)): Using the presence of civilians to shield military objectives from attack or to favor military operations is prohibited. Businesses must ensure their operations are not inadvertently or intentionally used in this manner by a party to the conflict.

Direct Participation in Hostilities (DPH) by Civilians

A critical nuance to civilian protection is that civilians lose their protection against direct attack for such time as they take a direct part in hostilities (AP I, Art. 51(3); AP II, Art. 13(3)). Defining what constitutes "direct participation" can be complex, especially concerning civilian contractors or employees of businesses supporting military operations. The ICRC's 2009 Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law provides a framework, suggesting three cumulative criteria: a threshold of harm, direct causation, and a belligerent nexus. Businesses whose employees might operate in close proximity to military activities or provide services to armed forces need to carefully consider this issue to understand the risks and protections applicable to their personnel.

Practical Implications and Due Diligence for Businesses

For businesses operating in or near conflict-affected areas, including regions proximate to Japan which may experience instability, these IHL principles translate into several practical considerations and due diligence requirements:

  1. Know Your Environment and IHL Basics: Conduct thorough risk assessments that include the potential for armed conflict and an understanding of applicable IHL rules. Ensure key personnel are aware of IHL principles.
  2. Protect Your Personnel: Employees are generally civilians and entitled to protection. Implement security measures, provide IHL and safety training, and have robust emergency and evacuation plans. Understand the DPH concept if employees are working closely with or for military entities.
  3. Safeguard Your Assets: Company facilities and assets are civilian objects unless their use changes. Take steps to ensure they are not used for military purposes that could make them legitimate targets. Clearly distinguish them from military objectives.
  4. Avoid Complicity in IHL Violations:
    • Ensure company operations do not aid or abet IHL violations by any party to the conflict. This includes scrutinizing contracts, services provided, and the end-use of products.
    • Do not locate operations in a way that could be construed as using civilians or civilian objects to shield military objectives.
  5. Supply Chain Due Diligence: Investigate supply chains to avoid sourcing goods or raw materials (e.g., conflict minerals) whose extraction or trade contributes to or benefits from IHL violations or fuels the conflict.
  6. Interaction with Parties to the Conflict: Establish clear policies and training for personnel on how to interact with state armed forces and non-state armed groups, emphasizing neutrality, respect for IHL, and avoiding actions that could compromise the company's civilian character or endanger staff.
  7. Respect Humanitarian Activities: Ensure company operations do not impede, and where possible, facilitate the work of impartial humanitarian organizations providing aid to affected populations.
  8. Contractual Safeguards: Review contracts for force majeure clauses, provisions related to armed conflict, and ensure adequate insurance coverage (e.g., war risk insurance).
  9. Reputational Management: Understand that any association with IHL violations, even if indirect or unintentional, can lead to severe and lasting reputational damage, impacting investor relations, consumer trust, and brand value.

Enforcement and Accountability

Enforcement of IHL primarily rests with states, who have an obligation to respect and ensure respect for the Geneva Conventions in all circumstances. Key mechanisms include:

  • Prevention and Suppression of Breaches: States must take measures to prevent breaches of IHL and to suppress them. This includes enacting domestic legislation to criminalize serious violations.
  • "Grave Breaches" System: The Geneva Conventions establish a system of "grave breaches," which are particularly serious violations for which states have an obligation to search for alleged offenders and either bring them before their own courts or hand them over to another High Contracting Party for trial (universal jurisdiction in principle for grave breaches).
  • Individual Criminal Responsibility: Serious violations of IHL constitute war crimes. Individuals, including military commanders and potentially civilians, can be held criminally responsible. This can occur before national courts or international criminal tribunals like the International Criminal Court (ICC).
  • Corporate Accountability: While international criminal law primarily focuses on individual responsibility, the landscape for corporate accountability is evolving. Corporations can face legal consequences through:
    • Prosecution under national laws in some jurisdictions that recognize corporate criminal liability for war crimes or related offenses.
    • Civil lawsuits seeking damages for harm caused by activities linked to IHL violations.
    • The prosecution of individual directors or managers for their role in corporate activities that constitute or contribute to IHL violations.
    • Growing "soft law" standards, such as the UN Guiding Principles on Business and Human Rights, which articulate a corporate responsibility to respect all human rights, including IHL, and to conduct due diligence to avoid adverse impacts.

Conclusion

The principles of International Humanitarian Law designed to protect civilians and civilian property during armed conflict are not abstract legal ideals; they have profound practical implications for businesses operating in volatile environments. Adherence to these principles is essential not only for legal compliance and mitigating operational risks but also for upholding fundamental ethical standards and maintaining a company's social license to operate.

For businesses with operations or interests in regions susceptible to armed conflict, a proactive approach to understanding IHL, integrating its principles into risk management frameworks and operational procedures, and fostering a corporate culture of respect for human dignity in all circumstances is indispensable. This includes conducting thorough due diligence, ensuring personnel are trained and protected, and taking all feasible measures to avoid any involvement, direct or indirect, in actions that could violate IHL or exacerbate human suffering.