Participants in conflict : cyber warriors, patriotic hackers and the laws of war
Heather A. Harrison Dinniss
International humanitarian law and the changing technology of war
Leiden ; Boston : M. Nijhoff, 2013
The purpose of this chapter is to examine the role of those participants who are involved in cyber operations whether as part of a State's armed forces or as civilians directly participating in the hostilities. The requirements for lawful combatancy are reviewed with the aim of exploring how they translate into a medium where anonymity is the norm and distance and proximity are largely irrelevant. Secondly, the specialist nature of new technologies and the downsizing of military forces have resulted in increased civilianisation of State armed forces; thus care must be taken in deciding what roles may be outsourced to civilian contractors without jeopardising their legal protections under international conventions. Likewise, increasing numbers of non-State actors, including so-called "patriotic hackers" are becoming involved in conflicts and may be used as proxies by States keen to benefit from the associated advantage of plausible deniability. In light of these developments, and the ongoing debate in international legal circles regarding the concept of direct participation in hostilities, the second half of the chapter reviews the criteria that were the subject of general agreement in the ICRC expert process to provide guidance on the notion of direct participation and examines how they might apply to participants in cyber operations.