Aligning Digital Responses to Armed Conflict with Enduring Values
Information and communications technologies (ICTs) are cross-border in nature. This fact, in addition to their inherent expression-enabling functionality, has led many governments, companies, and civil society actors to use international law, principles, and norms to inform the development, deployment, and governance of ICTs. For fourteen years, the Global Network Initiative (GNI) has been leading efforts to articulate the relevance of International Human Rights Law (IHRL) in the ICT sector, with a particular focus on the relationships and interactions between governments and the private sector.
As the UN Working Group on business and human rights has noted, businesses need to take extra precautions when operating in conflict-affected areas. Experience has shown that conflict settings exacerbate the human rights risks associated with ICTs in various ways. In unpacking these risks and related responses, there are relevant distinctions to be drawn, practically and legally, between internal and international armed conflicts. Most recently, the 2022 Russian invasion of Ukraine has highlighted the need for deeper and wider discussion and understanding of how IHRL, as well as the Laws of Armed Conflict (LOAC), apply to ICTs. In response to all of this, GNI has created an ad-hoc working group composed of interested academic, civil society, company, and investor members, with a range of expertise and experience, to examine a series of timely questions.
This blog post sets out some of these questions and explains how GNI intends to address them. We anticipate publishing further posts to keep interested parties informed of our ongoing discussions, to share expert views on these topics, and eventually to articulate any positions agreed upon by GNI’s diverse membership, as appropriate. We welcome feedback and input on this topic and will also look for — and use our blog, newsletter, and website to communicate about — opportunities for engagement with non-GNI members.
Questions for discussion:
During initial discussions, members of the ad-hoc working group discussed and agreed upon a set of key questions and began formulating a process for understanding how best to examine particular scenarios that have arisen in recent international armed conflicts. As a starting point, it is important to identify which countries are belligerents as defined by international law, and which are not. This is important because as a rule the norms of IHL will only apply to belligerents. Second, within each group (belligerents/non-belligerents), it is important to identify the country responsible for a specific action (whether it be a legal demand, a technological restriction, or a form of public or private pressure).
If it is determined that the LOAC are applicable, a series of subsequent questions specific to LOAC and the specific situation may be relevant. For instance: In what circumstances, if ever, can armed conflict justify government censorship or data access demands that would otherwise be inconsistent with IHRL? What criteria should companies use to examine government demands/ restrictions justified under conditions of armed conflict? What are the appropriate geographic/ jurisdictional limitations on content-related orders made in the context of an armed conflict? When and how can armed conflict justify the seizure/appropriation of private communications equipment/infrastructure?
Where LOAC does not apply, it is important to determine what specific human rights treaties, articles, and possible derogations are relevant to each specific action or scenario. Here the group identified the language in Article 20(1) of the ICCPR prohibiting “any propaganda for war,” and the relationship of that provision with the three-part test set out in Article 19(3), as of particular relevance. There is also a need for examination of when derogations from IHRL are possible, and how they might be limited (legally, geographically, temporarily), and when, if ever, private actors can be held complicit in spreading “propaganda for war”.
Some topics may require examination of other international law concepts and principles, like sovereignty and conflicts-of-law, and/or other areas of international law, such as international criminal law (e.g., how should governmental requests to private actors to retain data for potential war crimes accountability/transitional justice processes be interpreted?). Ultimately, the group agreed to move through these questions in a sequenced manner along the lines set out above.
The GNI Principles on Freedom of Expression and Privacy, together with the more detailed GNI Implementation Guidelines, set out a framework for responsible company decision making in response to government demands, restrictions, and pressure. This framework centralizes human rights principles in the design and use of corporate due diligence and decision making systems, but it does not dictate specific outcomes in particular scenarios. Over the years, through GNI’s unique assessment process, we have examined dozens of distinct corporate approaches and hundreds of specific case studies that have arisen in all sorts of distinct contexts.
This framework and these assessments provide the foundation for our analysis. However, this group may also seek to examine a broader set of questions, rights, case studies, and scenarios that go beyond the immediate application of the GNI Principles or GNI’s assessment process. Going forward, the group will seek opportunities to continue to share its work, including on this blog, and identify opportunities to engage with others engaged in similar analysis and discussions.
