The Legal Status of ‘Civilian Hackers’ under International Humanitarian Law

Abstract

In response to the rising trend of civilian hackers participating in cyber conflicts, the International Committee of the Red Cross has recently issued guidelines regulating their conduct. This article navigates the intricate legal landscape surrounding civilians who actively participate in cyber hostilities, exploring the concept of direct participation in hostilities (DPH) in the context of cyber warfare. Given the unique nature of cyber warfare, the article highlights the need for a nuanced and context-specific approach in determining the legal status of civilians involved in cyber hostilities. It underscores the importance of distinguishing between actions linked to an ongoing armed conflict and those that occur independently. The piece discusses the challenges in defining civilians in cyber warfare, the principles of distinction and proportionality, the criteria for qualifying a civilian as a “direct participant of hostilities” and the concept of continuous combat function (CCF), which distinguishes civilians continuously involved in cyber hostilities from those sporadically or ad hoc engaged. The article also delves into the temporal challenges in cyber operations and the “revolving door” concept, which complicates the application of DPH status in cyber warfare.