Participation generally

The law of armed conflict does not bar any category of person from participating in cyber operations. However, the legal consequences of participation differ, based on the nature of the armed conflict and the category to which an individual belongs.

1. The customary international law of armed conflict does not prohibit any individual from participating in an armed conflict, whether international or non-international. It should be noted that Article 43(2) of Additional Protocol I provides that ‘members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of Geneva Convention III) are combatants, that is to say they have the right to participate directly in hostilities’. This provision, applicable in international armed conflict, confirms that combatants enjoy immunity in respect of the acts undertaken as part of the hostilities. It does not prohibit others from engaging in those hostilities.

2. Although the law of armed conflict contains no prohibition on participation, it does set forth consequences that result from such participation. Three are of particular importance: combatant immunity, prisoner of war status, and targetability. The issue of targetability is dealt with in Rules 30 to 59 on attacks. Entitlement to combatant immunity and prisoner of war status depend on whether the individual concerned is a combatant in an international armed conflict. These issues are discussed in the following two Rules.