Cyber Warfare and the Notion of Direct Participation in Hostilities

Abstract

The domain of cyber warfare being relatively new, it is not yet matched by any comparatively novel international legal paradigm; the cyber conflicts of the present and (probably) the future therefore fall to be regulated under the existing lex lata. This article, assuming a scenario of international armed conflict, seeks as a specific example to apply the notion of direct participation in hostilities from Additional Protocol I (1977) to cyber war. This aspect of the topic is likely to assume particular importance in light of the contemporary tendency in many developed, Western armed forces to outsource technical specialist work (like information technology) to civilians. Whether or not such civilians can be said to be directly participating in hostilities—based on the accepted constitutive elements of threshold of harm, direct causation and belligerent nexus identified in the International Committee of the Red Cross’ Interpretive Guidance (2005)—will also have implications for the objects and places that could lawfully be targeted in future cyber conflicts.