What is an ICT company to do when operating in the midst of international armed conflict like the one raging in Ukraine? How should tech company executives respond to urgent government demands – often conflicting -- to propagate or censor online content arising in the context of war, including disinformation? And what of their demands to access the personal data or communications of users, ostensibly to safeguard security but nonetheless presenting the potential for abuse? Governments make difficult demands of ICT companies by seeking to impose heavy restrictions on the free flow of information and data privacy via the latter’s digital and social media platforms and mobile networks. This obligates the companies to devise new practices and policies to respond to those demands and the exigent circumstances that create them. To assist in that process, this Article maps the contours of the frameworks under international law—international humanitarian and human rights law, primarily -- that exist to guide company executives and other stakeholders who seek to follow a principled pathway to addressing such challenges. To that end, the Article first demarcates the respective scopes of application for international humanitarian and human rights law; it then analyzes the normative interplay between those two bodies of law using real and hypothetical examples drawn from the international armed conflict between Ukraine and Russia. By delving into the IHL-IHRL nexus and its function in the context of international armed conflict, the Article facilitates the constructive consideration of international legal norms by private sector actors and other non-governmental stakeholders invested in propagating the principle of humanity in this most difficult of settings.
GW Paper Series
46 Fordham J. Int'l L. (Forthcoming 2023)