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“Gaps” by Countering Hybrid Warfare – Building Resilience in Jus Ante Bellum

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“Gaps” by Countering Hybrid Warfare – Building Resilience in Jus Ante Bellum LEGAL CHALLENGES OR “GAPS” BY COUNTERING HYBRID WARFARE – BUILDING RESILIENCE IN JUS ANTE BELLUM Morten M. Fogt* Abstract This article is based on practical legal experience with the concept of “hybrid war.” It addresses this much discussed concept, the specific treaty limitations and the currently adopted hybrid countermeasures and then goes into a detailed legal analysis of the challenges and “gaps” that emerge. Both the traditional gray zones of the jus ad bellum and jus in bello are investigated from a hybrid war perspective as well as the specific legal challenges of confronting and countering a hybrid threat or warfare in peace time and crisis. A legal tetrachotomy is proposed consisting of the jus ante bellum, the traditional divide of the jus ad bellum and jus in bello and, moreover, the jus post bellum. It is suggested that the North Atlantic Treaty Organization (NATO) build more robust legal resilience in the jus ante bellum, that legal research in this area is prioritized, that NATO look at drafting model SOFAs and reforming the old NATO SOFA of 1951 and thereby take the new peacetime and crisis hybrid challenges into account, as this would reduce the need for and complexity of different multiple bilateral SOFAs, and that NATO instigates legal research aiming at harmonizing and aligning the various national peacetime and crisis (emergency or martial) laws and draft * Lieutenant Colonel of the Danish Army, Chief Legal Advisor, NATO Multinational Division North (MNDN), Latvia/Denmark, Associated Professor in Civil and International Law, Aarhus University, Denmark. The author is grateful for comments on this paper by Professor Geoffrey S. Corn, South Texas College of Law, Houston and for guidance on the status of national law by Major Ingus Puga, Legal Advisor, Head of Legal Department, Mechanized Infantry Brigade, Latvian Land Force; Captain Steven Raidma, Legal Advisor, 1 Estonian Brigade, Estonian Armed Force; Darius Baranauskas, Major, Legal Advisor and Chief Specialist, Law Department, Land Force Headquarters, Lithuanian Armed Force. The views expressed in this Article are those of the author alone and do not necessarily reflect the official policy or position of NATO, the MNDN, the Danish Ministry of Defense or Denmark. 28 2020] LEGAL CHALLENGES OR "GAPS" BY COUNTERING HYBRID WARFARE 29 and adopt model laws for NATO states to implement at their convenience. Building legal resilience in jus ante bellum should be put on NATO’s and other defense alliances’ agenda in the future. The article suggests that a NATO Center of Excellence on Legal Resilience should be founded. I. INTRODUCTION ......................................................................... 30 II. WHAT TO COUNTER – THE “HYBRID” THREAT OR WARFARE .. 33 III. SPECIFIC TREATY LIMITATIONS: THE FOUNDING ACT BETWEEN NATO AND RUSSIA 1997 ......................................................... 40 A. The NATO Legal Narrative: Justification and Vulnerability ........................................................................................... 43 B. The Russian Legal Narrative: Justification and Exploitation ....................................................................... 47 C. Self-Imposed Legal Vulnerability and Risk of Hybrid Threats and Warfare ......................................................... 49 IV. POSSIBLE RESPONSES: THE NATO DETERRENCE, REASSURANCE AND COUNTERMEASURES ................................ 50 A. Oversight of NATO Deterrence, Reassurance and Countermeasures ............................................................... 50 B. The Imbalance Between Law-Abiding States and Illegal- Acting States – A Legal Vulnerability ............................... 53 V. LEGAL CHALLENGES OR “GAPS” .............................................. 56 A. A Legal Tetrachotomy: Jus ante Bellum, Jus ad Bellum, Jus in Bello and Jus post Bellum ............................................. 58 B. Well-Known Legal “Gray Zones” in a Hybrid War Perspective ........................................................................ 61 a. The Jus ad Bellum Gray Zones: Threshold and Justification .................................................................. 62 1. The “Trigger” for the Inherent Right of State Self- Defense ................................................................. 62 2. Conditions for Invoking Collective Self-Defense . 67 3. Proportionality, necessity and immediacy – Flexibility in the use of force and Rules of Engagement .......................................................... 69 b. The threshold for an armed conflict – Applicability of the jus in bello .............................................................. 73 C. Specific Legal Challenges or “Gaps” in jus ante bellum by Hybrid Threats and Warfare ............................................. 76 a. Limits set by the national domestic law enforcement regime and HRL .......................................................... 78 30 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW [Vol. XXVII:1 1. Respect of Receiving State (Host Nation) Law and Political System .................................................... 78 2. Possession and carrying of arms by foreign forces and contractors ...................................................... 79 3. Use of force and self-defense by foreign forces .... 82 4. Military Assistance and Support to Law Enforcement and Crisis Control ........................... 88 b. Different National Emergency (Martial) Law Regime and Possible Derogation from HRL ............................ 91 c. The Dilemma Regarding Use of Private Contractors and Civilian Resistance ................................................ 95 d. Specific Legal Challenges by countering Informational Campaign and Psychological Operations .................... 97 VI. CONCLUSION AND THE WAY FORWARD: BUILDING LEGAL RESILIENCE IN JUS ANTE BELLUM ............................................. 98 I. INTRODUCTION The term “Hybrid Threat or Warfare” has become a discourse concept (non-legal concept) permeating the military and legal debate at the strategical, political and higher operational level.1 It has also been described as, inter alia, “ambiguous warfare,” “fourth or fifth-generation warfare,” “non-linear warfare,” “low-intensive asymmetric war,” “unconventional warfare” or “full-spectrum warfare” indicating perhaps something new and different than the normal understanding of conventional “warfare.”2 Following the Russian seizure and illegal annexation of Crimea in 2014, the term of choice by NATO has been hybrid warfare.3 Common to all possible descriptions of a “Hybrid Threat or Warfare” is that it entails a coordinated combination of a variety of measures at the 1. Frank G. Hoffman, Hybrid Warfare and Challenges, JOINT FORCE Q., 1st Quarter 2009, at 34, 34-39. 2. Compare BEN CONNABLE ET. AL., RUSSIA’S HOSTILE MEASURES, COMBATING RUSSIAN GRAY ZONE AGGRESSION AGAINST NATO IN THE CONTACT, BLUNT, AND SURGE LAYERS OF COMPETITION 5-6 (1st ed. 2020) [hereinafter RAND Report Russia’s Hostile Measures 2020] (referring to a wide range of catchphrases adopted such as “parawar, asymmetric war, pressure pointing, lawfare, salami slicing, unrestricted warfare, and hybrid warfare”), with Thomas P. Jordan, The Law of Armed Conflict, Unconventional Warfare and Cyber Attacks, 6 AM. U. NAT’L SECURITY LAW BRIEF at 37-58 (2006). See also YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 7-17 (6TH ed. 2017) (discussing the term war; the term “war” or “warfare” has numerous meanings and many connotations in national domestic law and remains undefined in international law). 3. RAND Report Russia’s Hostile Measures 2020, supra note 2, at xii, 6. 2020] LEGAL CHALLENGES OR "GAPS" BY COUNTERING HYBRID WARFARE 31 strategical (political), operational, down to the lower tactical level targeted against another state, or a specific part of that state, with the goal of achieving strategical, political and/or military advantages. The aims are usually pre- determined but at the same time flexible and floating; the means employed are multiple and pluralistic, lawful and unlawful, and capable of being reinforced by any sign of success. States or non-state actors alike can conduct an overt or covert hybrid campaign. The multiple, pluralistic, and lawful or unlawful means permit effectively covered actions, which can be supported by an informational denial campaign by states involved. In principle, the toolbox of a “Hybrid Threat or Warfare” is unlimited, and the legal framework and propaganda (also termed “lawfare”) is an integrated part. The decisive question from a legal perspective is not whether this is entirely new or any different from past military doctrine, but instead what challenges does it create for the modern legal framework of domestic national law, Human Rights Law (HRL) and international law, including the Law of Armed Conflict (LOAC). The questions are, inter alia, how such a coordinated “hybrid” campaign sufficiently be countered by lawful means; what the specific legal challenges are in peacetime, crisis and armed conflict situations; whether there are legal “gaps,” loopholes or gray zones which may be exploited by an adversary and which may be difficult or impossible to mitigate and counter by a law-abiding state(s) being threatened or attacked, and what measures can be taken in order to build more legal resilience in the jus ante bellum. Consequently, a hybrid threat or warfare conducted by overt or covert activities by states, state agents or non-state actors in times of peace, crisis or armed
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