Between a Rock and a Hard Place?

ICT Companies, Armed Conflict, and International Law

Arturo J. Carrillo

George Washington University Law School

Russia’s invasion of Ukraine in February of 2022 unleashed more than just the former’s military might against the territory of its neighbor: it also set into motion a new era of power dynamics on the internet. Technology companies whose platforms and applications dominate the digital realm have found themselves in the eye of a geopolitical storm, besieged by government demands from all sides of the war unfolding in Ukraine to restrict the flow of, or provide access to, information. This pressure to comply with State policies shaped by the international armed conflict between Russia and Ukraine, which is Europe’s first since World War II, is exemplified by the European Commission’s creation of a “crisis mechanism” through the enactment of the Digital Services Act (DSA) in April of this year. This novel mechanism grants the Commission the authority, in times of crisis involving threats to public health or national security, to impose “a state of emergency on social media sites, search engines, and online marketplaces.” This means that any of the 27 national governments comprising the EU may invoke the mechanism to censor content they deem as a threat arising from the Ukraine conflict, such as propaganda for war or disinformation, something that the EU had already acted to do. The EU’s new expanded authority in this regard extends over all the world’s major online platforms, including Meta, Google, YouTube, TikTok and Amazon.

The DSA and its grant of authority to order information, communication and technology (ICT) companies to regulate offending conduct online applies only to content that can be viewed in Europe. ICT companies must also respond to the stream of similar demands from the warring parties themselves: Russia and Ukraine. Unsurprisingly, the governments of both belligerents have been sending dueling requests to block access to or restrict online content and telecommunications in a variety of forms. For example, Russia is pressuring big tech companies to censor social media posts and other information flows inside the country on top of already restricting domestic access to those sites, as it did with Facebook and Twitter. Outside of Russia, the Putin government has ordered such platforms to lift their restrictions on pro-Kremlin media outlets related to Ukraine. The Zelenskiy government in turn sent a letter to ICANN (Internet Corporation for Assigned Names and Numbers) urging the non-governmental group to revoke the most common Russian internet domains and shut down the DNS (domain name system) root servers in Russian territory. In addition, Ukrainian authorities have for years sought to curtail inside the country the influx of Russian propaganda channeled through traditional and digital media, and now seek to do so more urgently than ever.

In the face of such chaos — unprecedented at least insofar as the digital dimension is concerned — what’s an ICT company to do? How should responsible technology companies respond to government demands to regulate online content arising in and around international armed conflict, such as propaganda for war? How should they respond to similar demands to provide access to personal data related to, or asserted to be justified by, the conduct of war? Is their decision-making at bottom just a “judgment call,” as some company executives would have it? Are tech companies simply required to “choose a side” when presented with competing demands by State parties to the conflict, as well as others that, while not active belligerents themselves, have expressly sided with one? Or is there a more principled approach to digital realm decision-making in the context of armed conflict? Fortunately, the answer to the last question is decidedly in the affirmative. As this article will explain, ICT companies (and others) can and should draw upon existing normative frameworks to guide their actions in the midst of a geopolitical crisis like the one generated by the war in Ukraine.

Indeed, ICT companies in wartime, like in peacetime, should be guided by pre-existing frameworks of international legal norms designed precisely for this purpose. In times of peace, human rights law provides a series of principles organized into a widely-accepted framework for how private-sector businesses should conduct themselves when confronted with government abuses and related challenges. The UN Guiding Principles on Business and Human Rights, or UNGP as they are commonly known, have been adapted to the business models of ICT companies and applied to the protection of freedom of expression and privacy rights online, not least through the operation of multi-stakeholder initiatives like the Global Network Initiative (GNI). But human rights law was not designed for wartime, which is the bailiwick of international humanitarian law (IHL), or the laws of armed conflict (LOAC). To quote John Ruggie, the former UN expert on business and human rights who oversaw the drafting of the UN Guiding Principles:

“[C]onflict zones are […] problematic because nobody can claim that the human rights regime, as it is designed, can possibly function in a situation of extreme duress for the host state. [Accordingly,] in situations of [armed] conflict, companies themselves ought to be looking to international humanitarian law to make sure that they do not find themselves either directly or indirectly contributing to violating IHL provisions or end up complicit in IHL violations.”

Thus, a normative framework does exist in answer to the touchstone question of how an ICT company should conduct itself in times of war vis-à-vis the actions of governments who are belligerents. The challenge is that we must look to at least two different bodies of international law — human rights and humanitarian law — to understand what that framework consists of, and how it operates in practice. That is what I propose to do in this article. Before proceeding, however, a caveat is in order. The focus of my analysis is on the legal obligations of States because under the UNGP framework, ICT companies are expected to respect those obligations when faced with governments demands to the contrary. At the same time, however, if “national laws, regulations and policies do not conform to international standards, ICT companies should avoid, minimize, or otherwise address the adverse impact of government demands, laws, or regulations, and seek ways to honor the principles of internationally recognized [norms] to the greatest extent possible.” My emphasis on the former point in no way minimizes the dictates of the latter one.

What, then, does international law say to ICT companies besieged by the aforementioned types of government requests? How does a demarcation of international norms applicable to States under such wartime conditions serve to orient the policies and practices of ICT companies upon which belligerent and non-belligerent governments place their demands, including in the scenarios described above? Under what circumstances can international armed conflict justify government censorship or data access demands that would otherwise be inconsistent with the States’ obligations under human rights law? Finally, what legal or normative sources operate in such situations, and how can ICT companies use them to evaluate government demands and restrictions based on or justified by conditions of a war raging between nations?

In this article, I will address these questions and provide at least preliminary answers to most of them. It is divided into two parts. In Part I, we begin by examining when and how the relevant bodies of international law apply to and during armed conflict, especially between States. This initial part includes a discussion of a critical issue: the overlap and interplay between the laws of war and human rights law where both are in effect. In Part II, we proceed to analyze some of the “real-world” factual scenarios taking place in the context of the war in Ukraine, starting with those referenced in this introduction. The object of this article is not just to demarcate the normative landscape of States’ obligations under international law in times of war, a necessary starting point for companies concerned about government abuses. It is also to offer practical guidance to ICT companies operating in and around armed conflicts like Ukraine’s when confronted with demands from belligerents and non-belligerents alike to censor or access data in ways that impact the fundamental rights of protected persons.

PART ONE

The war in Ukraine has framed a unique set of opportunities for protecting fundamental human rights and values on the internet. In late April of 2022, soon after the EU’s enactment of the DSA, the United States announced that it and 60 other State “partners” were assuming a series of political commitments to advance “a positive vision for the Internet in the face of […] global challenges presented by the 21st century.” This vision expressly includes a commitment to foster and protect “privacy” and “respect for human rights” online. Christened the Declaration for the Future of the Internet, this manifesto calls for participating nations to work towards “a global internet that advances the free flow of information” while “respecting each other’s regulatory autonomy […] in accordance with [their] respective domestic laws and international legal obligations.” In a response, applauding the issuance of the Declaration, Microsoft’s Brad Smith pointedly raises the armed conflict in Ukraine as one of those 21st century challenges, highlighting that “our generation’[s]” ability to “act collectively to protect human rights on the internet” depends on our ability to build upon “one of the most important advances of the 20th century, the proposition that governments must protect civilians even in a time of war” in accordance with the principles of the Fourth Geneva Convention.

In Ukraine and elsewhere, ICT companies seeking to adopt a principled position vis-à-vis a given government’s demands to censor information on the internet or interfere with privacy rights must first understand what duties international law imposes on that government. Only then can the company engage in an evaluation of whether said demands comport with the State’s legal obligations or not, a critical input into the company’s human rights due diligence calculus. Accordingly, what follows is an abbreviated primer on the operation of international law in relevant part. I will examine the nature of State duties under international human rights law (IHRL) and IHL, as well as how those legal obligations apply to and in a particular country. Special attention will be given to the concurrent application of these two bodies of law. While working through this framework I will reference the principal treaties and legal norms of IHRL and IHL in effect for the parties to the armed conflict in Ukraine, in addition to non-belligerent countries, like those comprising the European Union.

The Operation of International Law

International law emanates from a limited number of defined sources that include treaties, which are contractual agreements negotiated and subscribed by States, and customary international law (CIL), defined as norms that evidence a general practice among nations accepted as law. It goes without saying that governments are bound to comply with their conventional (treaty-based) and CIL obligations to respect human rights and humanitarian law. As we shall see in the next part, the obligations of companies in general, and of ICT companies in particular, are to ensure respect for those same fundamental norms by not enabling State violations of their IHRL and IHL obligations, or otherwise being complicit in such abuses. The starting place in either case is treaty law: what IHL and IHRL treaties have been ratified by the State in question and what is their scope of application?

While the rules governing treaty ratification and interpretation enshrined in the Vienna Convention on the Law of Treaties of 1969 (VCLT) will apply equally across the board to all treaties, the precise scope of application of specific treaties will depend on their express terms in this regard, and may vary. As we shall see, this principle is critical to understanding how to navigate the overlap of IHL and IHRL in situations of armed conflict. Broadly speaking, the scope of application of each body of law is defined by two factors. The ground rules of international law like the Vienna Convention that apply to treaties are the first factor, most notably the edict in VCLT art. 26 that “every treaty in force is binding upon the parties [that have subscribed to] it and must be performed by them in good faith.” The second factor governing a particular treaty’s scope of application is the express terms set out in the treaty itself for this very purpose. As with any legally-binding agreement, treaties must define, among other things, the subject matter, geographic, and temporal contours of their application. Article 31(1) of the VCLT recognizes this when it states that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Let us take Ukraine as an example. Ukraine is a long-time State Party to the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR); it is also a member of the Council of Europe (COE). To simplify the exposition moving forward, I will focus on the ICCPR in the understanding that our discussion of how that treaty operates in relation to Ukraine and other States is representative of those countries’ conventional human rights obligations more broadly. The VCLT is clear when it comes to the geographic scope of treaties in general terms: Article 29 states that “[u]nless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.” The ICCPR in Article 2(1) expands on this scope by establishing that a ”State Party to the […] Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction” all the rights contained therein [emphasis added]. At the same time, it is important to recognize that the ICCPR in Article 4 allows State parties to derogate from all but a handful of rights in a “time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” Article 4 thus operates to narrow the scope of application of the ICCPR even further with respect to its subject matter (human rights protections) in times of existential threats to the State Party, such as is clearly the case with respect to Ukraine in the wake of Russia’s invasion. We will return to this key point further below, not least because Ukraine has successfully derogated from its obligations under the ICCPR in this way.

The scope of application of the Geneva Conventions of 1949, the primary conventional sources of applicable law to the war in Ukraine, is qualitatively different. First and foremost, as defined in Article 2 common to the four Conventions, they will apply “to all cases of declared war or of any other [international] armed conflict…”. The Geneva Convention relative to the Protection of Civilian Persons in Time of War, known as Geneva Convention IV (GC IV) or the Civilians Convention, further stipulates that its unique scope of application applies similarly to “all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Finally, all four Geneva Conventions specify a category or categories of “protected persons” over whom they extend their respective safeguards; so, for example, Geneva Convention III covers prisoners of war, and is thus known as the POW Convention, while GC I and II address non-combatants on land and at sea, respectively. These protections were expanded and updated in the Protocol Additional to the Geneva Conventions of 1949 relating to the Protection of Victims of International Armed Conflicts (1977), commonly referred to as Protocol I. Ukraine, like Russia, is a long-standing State Party to the four Geneva Conventions, as well as Protocol I.

In short, international human rights treaties on the one hand, and those governing the laws of war on the other, each have very different scopes of application that must be considered separately when analyzing a scenario or situation of armed conflict on the territory of a State party. To better understand what that means in practice, we need look no further than the war in Ukraine, an international armed conflict to which, as noted, the four Geneva Conventions, Additional Protocol I and customary international humanitarian law all apply. In this context, IHL applies by its own terms exclusively to the actions of the belligerents: Russia and Ukraine, i.e., the countries engaged in hostilities against each other. More precisely, IHL will apply wherever those hostilities are taking place and/or wherever the “protected persons” who are the objects of IHL may be. International human rights law meanwhile will apply only in the territory and within the jurisdiction of State parties — belligerents or not — and only to the extent that lawful derogation has not taken place there. In other words, the application of IHL is dictated more by the stipulated context and subjects of its protections than by geography; IHRL on the other hand is bounded strictly by the State Party’s territory and jurisdiction.

The Application of International Law

The foregoing clarifies the nature of Ukraine and Russia’s duties under international law so long as the war rages on. But the devil is in the details, especially where IHL and IHRL are both in effect. Take Ukraine again as an example. Because Ukraine is one of the belligerents, the laws of armed conflict apply fully to the conduct of hostilities there, as well as other activities involving protected persons, such as POWs. At the same time, the framework of human rights norms emanating from the ICCPR and ECHR that operates normally in peacetime will continue to be in force throughout the country’s territory, consistent with the scope of application of the respective treaties. In this regard, the only allowance the ICCPR and ECHR make for application during wartime is the process of derogation, discussed in more detail below. In any case, the point is that IHL and IHRL can be said to apply concurrently in Ukrainian territory, raising challenges for ICT companies and others seeking to understand what rules will pertain to specific scenarios arising in the context of the armed conflict there.

The concurrent application of IHL and IHRL in times of war is a common feature of the different bodies of norms that comprise international law in this context (the third such body is international criminal law). But that does not make it any less contentious. The International Committee of the Red Cross (ICRC), a recognized authority in the field of international humanitarian law, describes their interrelation in the following terms:

“Where contradictions exist between [IHRL and IHL] rules, some argue that IHL provisions always prevail, in every situation for which IHL has a rule or even through its allegedly qualified silence (e.g. by not referring to the freedom of press in the law of military occupation). Others, adopting an International Human Rights Law approach, argue that in any circumstance the rule providing the greatest level of protection must be applied. In [the] view of the [ICRC], it is preferable to adopt a case-by-case approach and to apply the more detailed rule, that is, that which is more precise vis-à-vis the situation and the problem to be addressed, be it the rule emanating from IHL or from International Human Rights Law.”

The real challenge, then, is deciphering when rules from one body of law will apply over those of the other, given that both sets of rules are simultaneously in effect; this in turn requires discerning the content of the pertinent rule(s), depending on the approach taken. Navigating this nodal question of what rules of IHL will prevail over those of IHRL in the context of international armed conflict (or vice versa) depends on the outcome of two situation-specific inquiries fixed by international law. The first of these asks whether there has been a derogation from the relevant human rights treaties in effect; the second queries what the lex specialis (the “special” law) is, meaning which of the applicable legal norms is more specific and thus better suited to the particular scenario addressed. By working through these threshold issues in the context of the Ukrainian armed conflict, we can begin to see how each body of law is utilized in practice.

Let us return to the example of Ukraine. Due to the armed conflict, the country has lawfully derogated from both the ICCPR and the ECHR. In the prior section I highlighted the import of derogation, the process through which States may lawfully suspend their obligations under human rights treaties, thus drastically reducing the respective treaty’s scope of protection to a handful of “non-derogable” rights. This means that, in the case of the ICCPR, the only rights left in effect in Ukraine after derogation pursuant to Article 4 are the rights to life (Art. 6), juridical personality (Art. 16), and to freedom of thought, conscience and religion (Art. 18); together with the prohibitions on torture (Art. 7), slavery (Art. 8), debt bondage (Art. 11), and ex post facto laws (Art. 15). In addition, international law recognizes that basic due process guarantees must also remain in effect to ensure the safeguarding of the non-derogable rights. Even so, derogation leaves a normative vacuum of sorts for IHL to fill as per the terms of its more specialized conventional and customary law framework. For our purposes, then, the upshot of Ukraine’s derogation under ICCPR Art. 4 is that it can impose substantial restrictions on freedom of expression and privacy rights with respect to its citizens and other residents, even onerous ones, so long as said restrictions conform to the exigencies of the (dire) situation and are not patently arbitrary or discriminatory.

But what of those core human rights protections that remain in effect in Ukraine even after derogation? What happens in situations of armed conflict where the State cannot or chooses not to derogate from its human rights obligations? These are the scenarios in which the concurrent application of IHL and IHRL will require an inquiry into the lex specialis. An illustration of how this works in the Ukrainian context is provided by Article 15 of the European Convention on Human Rights, which prescribes that treaty’s derogation regime. Paragraph 1 of Article 15 affirms that in “time of war or other public emergency threatening the life of the nation” any State party can derogate from its obligations under the Convention. A notable exception is made in paragraph 2, which states that there can be “[n]o derogation from [the right to life], except in respect of deaths resulting from lawful acts of war (emphasis added).” (The only other express exceptions made are for the prohibitions on torture, slavery and ex post facto laws.) The ECHR in this way both recognizes the primacy of IHL with respect to the (otherwise non-derogable) right to life in a time of war and incorporates it as the lex specialis, an approach that holds for similar obligations under other IHRL treaties like the ICCPR.

PART TWO

Understanding when and how IHRL and IHL apply to situations of armed conflict is not the end of our analysis but rather the beginning. It is the starting point for the exploration of “real-world” scenarios in which ICT companies confront government demands from belligerents and non-belligerents alike. The international law regime described permits us to discern which set of rules will govern a State’s conduct in varying conditions, providing normative reference-markers for companies facing such demands. It confirms that international armed conflict can under certain circumstances justify a belligerent government’s censorship and data requests on its own territory where hostilities are taking place, even if those demands would otherwise be inconsistent with applicable human rights law. This is especially true where a State like Ukraine has derogated lawfully from its human rights obligations in a time of war, because under those circumstances, the “conflict” between IHL and IHRL becomes largely non-existent or minimal in practice. In that scenario, as in Ukraine today, it is IHL which is presumed to predominate in most cases.

Significantly, the situation in Russia, the other belligerent, is quite different. Let us now examine the nature and extent of Russia’s legal obligations in the wake of its invasion. To do so, we must differentiate between Russian territory proper, and that which it controls or disputes (through conquest) in Ukraine. For the most part, the conduct of hostilities following the invasion has been confined to the territory of Ukraine; most of the fighting is currently concentrated in disputed areas along the Russian border to the east and south, especially in the Donbas region. It is evident that Russia must adhere to the laws of war in the context of these hostilities, as well as in relation to protected persons, such as POWs, wherever they are, i.e. in Ukraine or Russia. In particular, Russia is bound to comply with the dictates of Geneva Convention IV, Protocol I and the customary IHL norms applicable to occupied territories in those areas of Ukrainian territory under its control. The question of whether Russia’s IHRL duties (discussed below) would or should extend to these occupied zones to supplement the baseline IHL guarantees provided to protected persons there is an open one, in theory. In practice, however, it seems quixotic at best.

A very different scenario plays out in Russia proper, at least insofar as the applicable normative framework is concerned. Given the general absence of hostilities in that country to date, Russia is bound first and foremost to respect human rights law fully vis-à-vis all persons within its territory, unless it were to derogate from the operable IHRL treaties. Even if Russia were to seek it, a valid derogation per the ICCPR for example is unlikely given the lack (to date) of an existential threat to the nation. This is especially important in light of the astonishing fact that Russia was expelled from the Council of Europe in March 2022, and, as a result, will cease to be an active State party to the European Convention on Human Rights starting in September 2022. That fact notwithstanding, as of this writing, Russia remains primarily bound by its IHRL obligations at home and in any place it controls where IHL does not operate as lex specialis, as is the case of the occupied territories in Ukraine.

It is for this reason that in May 2022 the United Nations Special Rapporteur on Freedom of Opinion and Expression and her colleagues from other regional human rights systems issued a Joint Statement collectively condemning Russia’s censorship and disinformation campaigns at home in conventional human rights terms:

“We are alarmed at the further tightening of censorship and repression of dissent and pluralist sources of information and opinion in the Russian Federation, including the blocking of social media platforms and news websites, [and] disruption of services from foreign content and service providers […]. We call on the Russian government to fully implement its international human rights obligations, including by respecting, promoting and protecting the freedom to seek, receive and impart information regardless of frontiers, and by ensuring a safe working environment for independent media, journalists and civil society actors [emphasis added].”

It is worth noting that, in their statement, the international human rights experts denounce as unlawful those incidents referenced in the introduction of Russia pressuring tech companies to censor social media posts and other information inside the country on platforms like Facebook, YouTube and Twitter; the experts are also condemning as illegitimate those measures that were already in place restricting domestic access to those same sites and others, for undermining freedom of expression in Russian territory.

That leaves the challenging question of what international law parameters apply to non-belligerent countries that take actions motivated by the armed conflict in Ukraine, like those comprising the European Union. In March of 2022, in a precursor action to the enactment of the Digital Service Act’s “crisis mechanism,” the Council of the European Union unanimously passed Regulation 2022/350 banning the transmission over any media of content from two Russian television stations with strong links to the Kremlin. The European Council’s resolution denounces Russia’s invasion of Ukraine together with the country’s “concerted [pro-war] propaganda actions targeted at civil society in the [European] Union [which] constitute a significant and direct threat to the Union’s public order and security.” The EU describes the two Russian media outlets as “essential and instrumental” to disseminating Russian state propaganda and disinformation directed at EU countries in support of its “illegal military actions” in Ukraine.

Accordingly, the EU’s stated legal basis for censoring the two Russian media outlets is anchored inter alia in the common foreign and security policy rules of the EU. What is really interesting for our purposes, however, is the express verdict of all 27 EU member states that Regulation 2022/350 — an unprecedented, momentous and sweeping action to be sure — is fully consistent with their human rights obligations:

“In view of the gravity of the situation, and in response to Russia’s actions destabilizing the situation in Ukraine, it is necessary, consistent with the fundamental rights and freedoms recognised in the Charter of Fundamental Rights, in particular with the right to freedom of expression and information as recognised in Article 11 thereof, to introduce [these] restrictive measures to urgently suspend the broadcasting activities of such media outlets in the [European] Union, or directed at the Union [emphasis added].”

What the EU governments are saying — including those of human-rights champions like Estonia, Finland, Netherlands and Sweden — is that they believe the restrictive measures imposed by the Regulation meet “the three-part test of legality, legitimate aim, and necessity and proportionality” required by international human rights law. With respect to the critical third prong of this test — that the restrictions must be in proportion to the problem addressed — the EU officials stress that they are targeting only the two most prominent and clearly attributable outlets used by the Russian state to wage its widespread disinformation campaigns, and only for the duration of the Ukraine conflict. Indeed, the organic connection between the TV stations targeted and the Kremlin is well-documented, bolstering the validity of the EU’s action.

Naturally, not everyone agrees. The UN Special Rapporteur on freedom of expression and her regional colleagues, in their joint statement of May 2022, expressed their concern that “the EU’s decision to ban two Russian state-owned media outlets may have been a disproportionate response to disinformation.” In their view, “[p]romoting access to diverse and verifiable information, including ensuring access to free, independent and pluralistic media, is a more effective response to disinformation.” Be that as it may, there seems to be no dispute that the EU’s weighty aim is legitimate under the circumstances, or that legal process was pursued to advance it. As for the sanctions themselves, when contrasted with the Kremlin’s iron-fisted repression and blocking of all independent media inside Russia (and in Russian controlled territories), the focused restrictions enacted by the EU in its regulation seem to pale by comparison, making it harder to argue against them. The only thing that is certain is that this debate will continue to take place exclusively within the framework of IHRL, with the armed conflict in Ukraine functioning primarily as context and a critical source of factual inputs for analysis.

CONCLUSION

Recall the overarching inquiries highlighted in the Introduction: What is an ICT company to do when operating in the midst of international armed conflict like the one raging in Ukraine? How should a responsible technology company respond to urgent government demands — often conflicting — to regulate online content arising in the context of such a war? Some company executives feel like they are being asked to choose sides, to make a judgment call with no normative compass to help navigate the challenge presented; they feel trapped between a rock and a hard place.

There is no doubt that the armed conflict in Ukraine has put a spotlight on the need to combat unfettered state propaganda and harmful disinformation, both inside and outside the conflict zones. Governments make difficult demands of ICT companies by seeking to impose heavy restrictions on the free flow of information via their 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 generate them. Recognizing this conundrum, the UN Special Rapporteur and other international experts in their recent statement “appreciate that […] companies [have] made some efforts to address these problems [and] urge them to strengthen their human rights due diligence and impact assessment, accountability, transparency and equal and consistent application of policies to uphold the rights of all users.”

This article has mapped the contours of the framework under international law that exists to guide ICT companies seeking to implement a principled approach to these very problems. There is, in other words, an alternative path between “the rock and the hard place.” To help chart it, I have demarcated the respective scopes of application of IHRL and IHL, as well as clarified the normative interplay between those two bodies of law using the ongoing war in Ukraine as an active example of international armed conflict. In this regard, I also ventured responses to a number of the challenges raised by actual government demands, from belligerents and non-belligerents alike, to ICT companies with a presence in the region. There is still much work to be done, of course, particularly with respect to IHL and its role in guiding the operations of businesses that provide technology services in and around the theater of war. But that is a subject for another article.