Governments should act now to stop the growing involvement of civilians in the digital battlefield – actions which can expose them to grave risk of harm, a study warns.
Individuals are increasingly taking part in offensive cyber operations or using digital tools to provide tactical intelligence to the militaries. Private civilian companies are also increasingly involved in armed conflicts.
Under international law some of these activities amount to direct participation in hostilities and can temporarily remove these individuals’ protection from direct attack. If captured they may not be entitled to prisoner-of-war status.
In a new study, Dr Kubo Mačák, from the University of Exeter Law School, says states should do more to reverse the trend of civilianization of the digital battlefield and refrain as much as possible from involving civilians in cyber hostilities. Those who encourage such engagement should be open and transparent about what it means in practical and legal terms.
Dr Mačák said: “The growing involvement of civilians in activities on the digital battlefield during armed conflicts puts individuals at risk and contributes to the erosion of the principle of distinction, a cornerstone of international humanitarian law.”
The study says most activities taken by private companies will fall well below the threshold of direct participation. This includes some activities with relevance to national cyber defence or to the prosecution of the war effort, such as the development of generic cyber capabilities designed for military use, training military cyber personnel, hardening existing cyber defences, or strengthening societal cyber resilience in anticipation of enemy military operations.
By contrast, some forms of action taken by private companies to defend the domestic cyber infrastructure against the enemy’s military cyber operations may impede or thwart such operations and could potentially cross the required threshold.
The analysis also says civilians sharing military information of a general nature does not constitute direct participation in hostilities. Otherwise internally displaced persons arriving in camps would not be able to tell their stories to the government authorities if those stories contained information on the location of enemy forces – or a civilian air traffic controller could not report the approach of enemy military aircraft in the course of her work.
Dr Mačák said: “While not every form of civilian involvement on the digital battlefield qualifies as direct participation, the danger is that it may be seen as such by the enemy, thus exposing many civilians to a grave risk of harm.”
Civilians are not shielded from domestic prosecution if they take part in some aspects of cyber warfare.
Civilians only lose protection from attack “for such time as” they directly participate in hostilities. This means that if the specific act that constitutes direct participation ends, their protection against attack is restored. The exact beginning and end of specific acts amounting to direct participation in hostilities must therefore be determined with utmost care.
The study, which was written during Dr Mačák’s secondment with the International Committee of the Red Cross, is available on open access here.