attacks against persons
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For these Experts, individuals who do not have such a function are to be treated as civilians who may only be attacked for such time as they directly participate in hostilities. The controversy over continuous combat function is relevant in both international and non-international armed conflict. All members of the International Group of Experts agreed that, with regard to a group that consists of both military and political or social wings, only the military wing qualifies as an organized armed group. 5. The International Group of Experts was also divided over whether an organized armed group involved in an international armed conflict must ‘belong to a party to the conflict’ to be subject to this Rule. For instance, a particular group may be involved in cyber attacks for reasons other than providing support to one of the parties, such as religious or ethnic animosity towards their opponent or a desire to take advantage of the instability generated by the armed conflict to accumulate power. The notion of ‘belonging to a party’ was examined in the Commentary to Rule 26. Some Experts adopted the approach taken in the ICRC Interpretive Guidance by which members of a group that does not belong to a party to the conflict are to be treated as civilians for the purposes of that conflict.59 Accordingly, they can only be targeted for such time as they directly participate in hostilities. Other Experts took the position that for the purposes of this Rule, no such requirement exists; all members of the group may be targeted based on their status as such. 6. With regard to civilians directly participating in hostilities, see Rule 35 and the accompanying Commentary. 7. An interesting question in this regard is the qualification of private contractors. The International Group of Experts agreed that individual contractors are civilians who may only be targeted based on their direct participation in the hostilities (Rule 35). The more difficult case involves a company that has been contracted by a party to the conflict to perform specific military operations such as cyber attacks against the enemy. The majority of Experts took the position that the company qualifies as an organized armed group belonging to a party.60 By contrast, the 59
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The Guidance does note that the group may be a party to a separate non-international armed conflict with its opponent if the violence reaches the required threshold. ICRC Interpretive Guidance at 23–4. See ICRC Interpretive Guidance at 38–9 (noting that contractors effectively incorporated into the armed forces of a party to the conflict by being given a continuous combat function would become members of an organized armed group and would no longer, for the purposes of the distinction principle, qualify as civilians). On qualification as an organized armed group, see Commentary accompanying Rule 23.