participation in armed conflict
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virtual organization would qualify as an organized armed group for the purposes of determining combatant status. 10. Combatant status requires that the individual wear a ‘fixed distinctive sign’.12 The requirement is generally met through the wearing of uniforms. There is no basis for deviating from this general requirement for those engaged in cyber operations. Some members of the International Group of Experts suggested that individuals engaged in cyber operations, regardless of circumstances such as distance from the area of operations or clear separation from the civilian population, must always comply with this requirement to enjoy combatant status. They emphasized that the customary international law of armed conflict in relation to combatant immunity and prisoner of war status offers no exceptions to this rule. Article 44(3) of Additional Protocol I does provide for an exception.13 However, it does not reflect customary international law.14 11. Other Experts took the position that an exception to the requirement to wear a distinctive sign exists as a matter of customary international law. They argued that the requirement only applies in circumstances in which the failure to have a fixed distinctive sign might reasonably cause an attacker to be unable to distinguish between civilians and combatants, thus placing civilians at greater risk of mistaken attack. Consider a situation in which a Special Forces team is tasked to identify and attack a military cyber control facility located in a cluster of similar civilian facilities. A failure of the military personnel in the facility to wear uniforms would make it more difficult for the Special Forces team to distinguish the military from civilian facilities, thereby heightening the risk that the civilian facilities will mistakenly be made the object of attack. 12. Some of these Experts limited the exception in the previous paragraph to situations in which combatants engaged in cyber operations are located within a military objective for which there is a separate
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The ICRC Customary IHL Study, Rule 106, provides that ‘Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.’ Some States Party to the Protocol limit its application to occupied territory and the situation referred in Art. 1(4) of the same treaty. See, e.g., UK Additional Protocol Ratification Statement, para. (g). See also UK Manual, paras. 4.5–4.5.3. Michael J. Matheson, Remarks in Session One: The United States Position on the Relation of Customary International Law to the Protocols Additional to the 1949 Geneva Conventions, 2 American University Journal of International Law and Policy 419, 425 (1987).