Corporate Accountability in Warzones — Should companies be held to the laws of war?

Private enterprises are playing an increased role in conflicts and other spheres of international affairs. Typified by the role which firms have played in ongoing crises, such as those in Ukraine and Gaza — such as Starlink’s role as a means of communication to Ukrainian forces — it is crucial to re-evaluate the role they play in the international system.

Recently, this was highlighted by the UN Special Rapporteur for the Occupied Palestinian Territories in a report to the UN Human Rights Council.

There is a clear need to address issues of war profiteering; however, an undue broadening of the scope of corporate accountability can stifle innovation, and make companies less willing to work in emerging, yet complex markets to drive economic and social empowerment.

With the proliferation of emerging technologies such as satellite communication and artificial intelligence (AI), companies are playing a much greater role on the global stage. Several instances abound: Starlink’s system is critical for Ukrainian forces, while social media has become the hub of fake news, creating new forms of interventionism. In the situation in Palestine, the special rapporteur has pointed out the role that Big Tech and financial institutions have played in abetting conflict.

Given these issues, there is a clamour to revisit the status of corporates in the international legal system. Currently, companies lack a legal identity in international law, with claims brought by a State, barring exceptions such as investment arbitration. This is understandable, given their complex and multi-jurisdictional nature.

However, States are increasingly open to the idea of companies acting internationally. Fiscal considerations have increased the reliance on enterprises to provide goods and services which were previously the domain of the State. Private sector considerations allow for plausible deniability and create sandboxes to test technologies, which can then be marketed as ‘field-tested’.

Finally, it allows for a new avenue for technology export, economic growth, and the development of indigenous industries. This intertwined nature of business and politics has resulted in calls, such as the special rapporteur’s report, to hold corporates and States responsible for profiting from the conflict in Gaza and the West Bank.

What would a system of increased corporate accountability under international law look like? International law would likely treat States and corporations similarly, with corporate leadership facing similar responsibility as those in positions of political power. This would add a layer of compliance and stifle innovation, particularly in emerging markets which have just begun to benefit from the proliferation of technology. Such changes could alter core principles of international law, since attribution for crimes has a high standard of effective control, difficult to apply to sellers of goods and services.

Several key issues emerge. Attribution remains a key challenge. Technology firms, despite knowing users and buyers, often lack control over how their systems are used, especially across borders. Financial systems, payments and cloud infrastructure, biometrics, and satellite systems provided are dual use. Sanctioning such firms risks impacting civilians who use these systems, and are unconnected to the military or the enterprise.

A crucial question relevant to the laws of war also emerges. Are providers of dual-use technology a part of the war machinery and legitimate targets by providing it? It would be hard to imagine such a situation. Also, many companies support important development activities in emerging and frontier markets.

Such a view is also likely to be problematic for India’s emerging technology sector. The past decade has seen a sudden growth in India’s indigenous technology and defence market. Indian companies export payment systems such as UPI globally, and emerging startups working alongside established companies such as HAL, BEL, and BrahMos Aerospace are now exporting defence systems to countries around the world, some of them involved in ongoing conflicts. India is also a hub for military technology equipment, such as UAV parts, and auto ancillary components for artillery. An expanded notion of corporate accountability can chill these innovations. Such a move will also put undue pressure on entrepreneurs and bureaucrats.

Today, corporations play a significant international role, leading to concerns ranging from labour rights violations to war crimes and genocide. For those seeking to benefit from war and these violations, a robust accountability mechanism is essential. However, expanding the legal framework of accountability in a manner that stifles innovation is counterproductive. Overreach can create unworkable standards and pushback from governments, making the practical application of rules for accountability harder to enforce. As a result, it is likely to slow down actual efforts to hold corporate war profiteers accountable.

Kartik Ashta is an international legal expert, currently working in the social protection and sustainability space in Geneva. X: @kartikashta.

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.