Civilian direct participation in cyber hostilities

Abstract

This article studies the application of a well-known notion of international humanitarian law, civilian direct participation in hostilities, to cyber warfare. According to the principle of distinction, civilians and combatants must be distinguished in times of armed conflict. The shift of hostilities from the real world into cyberspace affects neither the definition of combatants nor the negative definition of civilians. However, beyond the classical approach of the principle of distinction, the changing character of warfare also concerns cyber warfare. Indeed, the distinction between battlefields and civilian areas is increasingly less clear and a rising number of non-combatants directly participate in hostilities in various ways. Cyber means, and the development of cyber warfare, offer numerous new possibilities for non-combatants who want to take part in hostilities. It has never been that easy to get involved in hostilities for civilians and most civilians are ignorant of the consequences of their actions. Recently, two groups of experts have released documents partly related to this topic with divergent conclusions: the first one is the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law adopted by the ICRC in 2009. The second one is Tallinn Manual on the International Law Applicable to Cyber Warfare written at NATO’s Cooperative Cyber Defence Centre of Excellence behest. As these documents differ in their approach to reading of the topic, part of this article will analyze their divergences.