The Three Swords Magazine 32/2017 “NATO and the EU Agree That Among the Goals to Be Achieved in Dealing with Hybrid Threats Is the Building of Resilience.”

ON THE COVER LAWFARE Softwiring Resilience into the Network

by COLONEL RET. JODY M. PRESCOTT United States Army Lecturer, University of Vermont Senior Fellow, West Point Center for the Rule of Law

The views expressed in this article are those of the author and do not necessarily re ect the of cial policy or position of the U.S. Department of the Army, the U.S. Department of Defense, any governmental agency or NATO. The author wishes to thank Christopher Florian, Ilkka Ojala and Marja Lehto for their thoughtful comments and suggestions.

E FIRST STARTED talking inherent rigidity. Perhaps, however, there is a War Amongst the People about network-centric opera- di erent approach to incorporating this func- and the Hybrid Threat tions over 20 years ago.1 Cer- tionality. Maybe we should just accept the hi- tain military organizations, erarchical structure of regular military forma- e hybrid threat is just one aspect of an in- such as Special Forces head- tions rather than ghting it. Perhaps, we should creasingly complex and interrelated interna- Wquarters and units, appear to have incorporated view networking not as an alternative organi- tional security environment. U.S. Army Chief important aspects of networked functiona lity zational structure, but as a reinforcement of of Sta General Mark Milley foresees armed into their work. Di erent regular forces’ head- existing command and sta processes—rein- con icts more likely being “fought in dense ur- quarters and units in which I served also at- forcement with exible connections based on ban areas with more robotic weapons and with tempted to revamp their organizational struc- cross-cutting operational themes. a large civilian population in the middle of the tures around information to be more exible I suggest that in light of the current ghting, a situation that makes the enemy elu- and responsive. From my perspective, these focus within the NATO Alliance on what is sive and combines conventional warfare with e orts had at best uneven and modest degrees called the “hybrid threat”, a decent candidate terrorism and guerilla activities.”2 of success. Perhaps, this was because of the for this so wiring approach is the notion of General Sir Rupert Smith has aptly headquarters’ nature, and the lines on their “lawfare”; the recognition that rule of law and described this as “war amongst the people”; organizational charts—“wire diagrams”—both the role of law have increasingly become as- armed con ict in which the civilian popula- re ected and reinforced the reality of their pects of modern warfare. tion’s will becomes both the object of military

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6 The Three Swords Magazine 32/2017 “NATO and the EU agree that among the goals to be achieved in dealing with hybrid threats is the building of resilience.”

Soldiers of the Norwegian Brigade North's 2nd Battalion deploy to Latvia for exercise SABER STRIKE 2016 with one of NATO's C-17 Globemaster III military transport aircrafts. Photo by Ole-Sverre Haugli, Forsvaret The Three Swords Magazine 32/2017 7 LAWFARE

operations and the environment in which these “addressing potential strategic and critical sec- of hybrid warfare. Locating lawfare under the operations occur.3 e mobilizing capabilities tors such as cyber security, critical infrastruc- umbrella of hybrid warfare is an important rst of social media and the growth of the Inter- tures (Energy, Transport, Space), protection step in guring out how to meaningfully assess net are other aspects of this new operational of the nancial system from illicit use, protec- the operational signi cance of law in address- reality, as is, I suggest, the gendered e ects of tion of public health, and supporting e orts to ing this sort of con ict. As concrete steps for- armed con ict and climate change upon popu- counter violent extremism and radicalisation.” ward in this e ort, Lieutenant Colonel Moore lations,4 and the increasing potential for cyber Related goals include “raising awareness” of urges the development of doctrine that includes operations to ripple out of cyber space into the hybrid threats, and “stepping up the coop- the role of lawfare, the study of Russian writings geophysical world.5 Against this backdrop, in eration and coordination between the EU and on hybrid warfare by planners and LEGADs, the a ermath of Russia’s invasion of Ukraine NATO as well as other partner organisations, and the provision of o cial NATO guidance to and annexation of the Crimea, NATO has in- in shared e orts to counter hybrid threats.”7 planners and exercise developers on how to increasingly focused on the risks to the Alliance Importantly, the recent creation of the Euro- corporate the reality of hybrid warfare into their posed by hybrid threats. pean Centre of Excellence for Countering Hy- work.10 ese steps would no doubt be valuable, ere is no NATO doctrinal de nition brid reats in Finland, with Finland, France, and would help foster increased resilience in of this sort of threat yet, but NATO and the Germany, Latvia, Lithuania, Poland, Sweden, NATO’s ability to e ectively respond to hybrid EU have described it as a “mixture of conven- the United Kingdom and the United States as threats or even con ict. tional and unconventional, military and non- its founding participants, provides a locus for However, based on my research on the military, overt and covert actions that can be research, coordination, training and exercises evolution of international law since the time of used in a coordinated manner by state or non- addressing hybrid tactics and techniques.8 Carl von Clausewitz’s writing of O W and on state actors to achieve speci c objectives while the now-discarded E ects Based Approach to remaining below the threshold of formally de- The Hybrid Threat Operations (EBAO),11 as well as my experiences clared warfare.” NATO Secretary General Jens and Lawfare as an Allied Command Transformation (ACT) Stoltenberg has come up with what actually and Joint Warfare Centre (JWC) Observer/ may be the most useful de nition for NATO In his cogent article published in this journal’s Trainer and an International Security Assis- purposes from a lawfare perspective: “Hybrid January 2017 edition, Lieutenant Colonel John tance Force (ISAF) Chief LEGAD, I suggest a is the dark re ection of our Comprehensive Moore provided an important perspective into slightly di erent, but complementary approach. Approach. We use a combination of military the relationship between “hybrid war” and First, I will describe how working as a and non-military means to stabilize countries. “lawfare”. For Lieutenant Colonel Moore, law- trainer taught me that the role of law in op- Others use it to destabilize them.”6 fare, de ned by Professor Charles J. Dunlap, Jr. erations has both an external and an internal NATO and the EU agree that among as “the strategy of using—or misusing—law as component. Next, I will exhume the bones of the goals to be achieved in dealing with hybrid a substitute for traditional military means to my failed e ort to e ectively use EBAO to as- threats is the “building of resilience”, that is, achieve an operational objective”9 is a subset sess the development of rule of law in Afghani-

New NATO HQ, 25 May 2017. Photo by NATO

8 The Three Swords Magazine 32/2017 LAWFARE

Photo by NATO Cooperative Cyber Defence Centre of Excellence

ABOVE: Organized by the NATO Cooperative Cyber Defence Centre of Excellence in Tallinn, the LOCKED SHIELDS is the largest and most advanced international technical live-ﬁ re cyber defence exercise in the world. This year, the exercise involved 900 participants from 25 nations. While the team from Czech Republic "won" the simulation exercise, NATO's Computer Incident Response Capability (NCIRC) scored the highest in the legal game of the exercise, the German team came out on top of forensic challenges, and the team from the United Kingdom achieved the highest scores in handling the Strategic Communication challenges. (Source and for more information, please visit ccdcoe.org) stan, and explain the di culties of e ectively large-scale ISAF Headquarters as well as the actual force was an everyday occurrence. Fur- gathering, analyzing and measuring the large smaller regional command headquarters. I ther, these di erences were largely hardwired— amount of data that would be needed to gener- learned what the operational issues appeared to education and training programs had been ate actionable Intelligence and fully implement be and how the di erent headquarters’ Standard created, troops had been taught and trained, lawfare as an operational capacity. Operating Procedures (SOPs) were supposed to and signi cant amounts of money had been Finally, I will suggest an approach to work. I also watched them evolve over a fairly invested in implementing the di erent national identify areas in which I believe lawfare has a short period of time. Importantly, we LEGAD legal and policy perspectives. role to play in making operations in the cur- trainers were included across the breadth of the rent complex international security environ- di erent training development and execution A LEGAD Struggles Through ment more e ective and consistent with the cells. I grew to appreciate the extensive scope of "ON WAR" democratic values shared by the NATO Part- not just training and educa ting the ISAF Train- ners. I am not advocating “building” resilience ing Audiences in the operational implementa- Becoming aware of these di erent under- in NATO regarding lawfare; this sounds too tion of legal principles, but of accomplishing stan dings and usages of law caused me to re- much like more of the same in exibility with these tasks among our fellow trainers as well. engage in my research on von Clausewitz’s po- which we are all familiar. Rather, to be resil- e last point should not have surprised sition on the operational signi cance of law. As ient, lawfare needs to be elastic—so wired me. I had worked in the Implementation Force a student at the U.S. Army Command and Gen- into the quiet network of functionality that ex- (IFOR) Headquarters in Sarajevo in 1996 as eral Sta College, I had read for the rst time ists side by side with organizational hierarchy the Operational Claims Chief. I had come to O W as part of our military history lessons. in modern operational units. realize that di erent Troop Contributing Na- e re-theorizing surrounding von Clausewitz’s tions had their own distinct approaches to writing did not seem particularly useful to me, The Importance & Limitations handling claims, and that this was a re ection with the exception of Professor Alan Beyerch- of Ordinary Training of their own domestic legal authorities and en’s analysis of O W from the perspective of policies. What I had not realized at that time, chaos theory.12 It was this analysis that led me Serving at ACT and then at the JWC, I worked however, was that these di erences would of- to an understanding of von Clausewitz’s work in the pre-deployment training of both the ten be ampli ed in operations where the use of with which I was comfortable.

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The Three Swords Magazine 32/2017 9 BUILDING RESILIENCE ⁄⁄ Strategic Communications ⁄⁄ Cyber Security Awareness ⁄⁄ Counter-Terrorism ⁄⁄ Protection of Critical Infrastructure ⁄⁄ Protection of Public Health ⁄⁄ Protection of the Financial System

Photo by Daniel Nordby, Forsvarets Ingeniørhøgskole

Perhaps it is too simple, but this is what I con- self-imposed, imperceptible limitations hardly ternational law has become more like the “real” cluded were the main points von Clausewitz worth mentioning, known as international law law that he likely had in mind when he stated was driving at. War does not exist other than and custom, for they scarcely weaken it.” his assessment. as an expression of political decisions. War is Accordingly, “[f]orce—that is physical First, the nations of the world decided to messy, and inherently unpredictable. e un- force, for moral force has no existence save limit their sovereignty by agreeing to enduring predictability of war cannot be tamed, but it as expressed in the state and law—is thus the treaties that restricted the means and methods can be mitigated through an understanding of means of war, to impose our will on the enemy of warfare. Second, the growth in treaty law led history and realistic training. In war, nothing is its object.”14 to more states accepting that they were bound is easy, and human nature and emotion are as by the customary international law that de- much to blame for operational plans failing to HEN I EXAMINED the un- veloped because of consistent state practice in unfold in an orderly fashion as is the weather. derstanding of international these matters. ird, the creation of lasting in- Commanders must make decisions based on law during von Clausewitz’s ternational and regional organizations, such as imperfect information, and the lack of In- lifetime, I came to appreciate the UN and the EU, has led to the development telligence causes them to be cautious in the that although his views were of new laws in this area. Fourth, the advocacy d eployment of their forces and to rely on their Wblunt, they were not inaccurate. Even the most e orts of international organizations, such as biases and intuition.13 progressive writers on international law of the the International Committee of the Red Cross As a LEGAD though, I continued to time, such as the Swiss diplomat Emmerich de (ICRC) and non-governmental organizations, struggle with von Clausewitz’s assessment of Vattel, recognized the right of sovereign na- facilitated by the explosive growth of the news the operational irrelevance of law in armed tions to make harsh exceptions to the rules of media, have resulted in important develop- con ict. “War is thus an act of force to com- general humanitarian conduct when necessary ments in international law regarding the use of pel the enemy to do our will,” von Clausewitz to safeguard their interests.15 Now, nearly 200 armed force, as evidenced by the Ottawa Con- wrote, and “[a]ttached to force are certain years a er von Clausewitz wrote O W, in- vention banning landmines, for example. Im-

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portantly, this growth in binding law resul ted tion of EBAO was to create “e ects” among public statements by host nation o cials that from a rmative political decisions by the the di erent actors in a theater of operations, supported counter-terrorism e orts.22 states involved, in a manner consistent with which were de ned as “changes to perceptions, von Clausewitz’s assessment of the primacy of beha vior, and capabilities”.19 E ects were cre- EBAO and The Rule of Law politics in war.16 ated by “actions”, which were de ned as the use of “any [NATO] instrument at any level”, and As a NATO LEGAD, the ideas behind EBAO The Effects Based Approach which at the tactical level would be conducted appealed to me immediately. Here was a meth- to Operations (EBAO) as speci c tasks and activities.20 Aggregations odology that held the promise of gathering of e ects would lead to achieving the objectives data, analyzing it, and then acting upon it in a Once I had concluded that the operational set out by NATO’s political leadership.21 way that could minimize injury or death to ci- signi cance of law had changed markedly For example, NATO could decide that vilians, and collateral damage to their pro per- since von Clausewitz’s time, and that he would establishing the rule of law was one of its ob- ty. It provided connection points to civilian likely have been forthright in acknowledging jectives in a host nation into which its forces e orts in theaters of operation, and suggested that if he were alive today, I returned to his were deployed. A desired e ect of this objec- that although full synchronization with these point about the lack of accurate and timely tive could be an end to support of terrorist e orts might be out of reach, complement- Intelligence being available to commanders in organizations by the nation. To assess whether ing civilian e orts with military initiatives to their decision-making. While serving at ACT this e ect was being created, two types of crite- achieve e ciencies in operations was possible. in 2005, I had become aware of a new con- ria would be used, “Measures of Performance” Further, EBAO did not appear to require cept that was gaining traction in the U.S. and and “Measures of E ectiveness”. Measures of signi cant re-organization or re-equipping of NATO training and doctrine circles, the “Ef- Performance assessed whether the actions existing units or infrastructure—it was an ap- fects Based Approach to Operations” or EBAO. designed to create the e ects were being ac- proach, an operational mindset, to achieving a e purpose of EBAO was to enhance complished. Measures of E ectiveness as- comprehensive analysis picture of an opera- military planning, the execution of operations, sessed whether the actions were being done tional theater. By the time I became the ISAF and the assessment of those operations through correctly. So, for example, an action could be Chief LEGAD in the summer of 2008, ISAF a more holistic picture of the theater of opera- NATO personnel bringing up the importance had already begun using a version of EBAO, tions.17 Ideally, it would allow for synchroniza- of addressing counter-terrorism in meetings and the development of the rule of law in Af- tion of military e orts with those of govern- with host nation o cials. A measure of perfor- ghanistan was designated as one of the lines of mental, international and non-governmental mance could be the number of such meetings e ort to be tracked by the headquarters. I saw a organizations so that the overall e ort could be in which the topic was raised. A measure of chance to really engage e ectively with EBAO more e ective and more e cient.18 e func- e ectiveness could be an increased number of in this important area, primarily because tra-

‘‘What has happened is that in the past, in what I call ‘industrial war’, you sought to win a trial of strength and thereby break the will of your opponent, to nally dictate the result, the political outcome you wished to achieve.

In our new paradigm, which I call ‘war amongst the people’, you seek to change the intentions or capture the will of your opponent and the people amongst which you operate, to win the clash of wills and thereby win the trial of strength. The essential difference is that military force is no longer used to decide the political dispute, but rather to create a condition in which a strategic result is achieved.’’

— General Sir Rupert Smith International Review of the Red Cross Magazine

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personnel actually working there, they were categorized as “red” for being largely ine ective. Between 26 and 50 per cent, their assessment was “orange”; between 51 per cent and 75 per cent, their assessment was “yellow” and between 76 and 100 per cent, their assessment was “green” for largely e ective. In contrast, just getting a single Kabul-assigned judge present in a local court in many areas of Afghani- stan o en represented a signi cant investment in resources and no small triumph under the circumstan ces. Under the Iraq-based matrix, however, this would only represent a negligible blip in the “red” category. Second, we consulted widely with dif- ferent international and non-governmental organizations present in Afghanistan and Af- ghan rule of law stakeholders as to the types of Measures of Performance they thought would be most useful to capture the most important trends in rule of law development. Unfortu- nately, we were not able to get much consensus as to what they should be, nor rigorous advice on how to measure them. So, for example, we reluctantly started using inexact proxies for actual Measures of Performance, such as the square meters of space ABOVE: A meeting of the White Cell during operational level exercise TRIDENT JAGUAR 2017. White Cell's mission is to ensure the synchronization of military efforts with those of governmental, international and non- available per prisoner in correctional facilities governmental organizations, and replicate, as such, the complex civil-military environment. Photo by JWC PAO instead of detailed studies. We did this despite knowing from our site visits to di erent Afghan ditional military command and sta processes Courts, Corrections and EBAO prisons that not only were the gures reported seemed particularly unsuited to such work. in the most detailed and rigorous open-source Now, my research and study of von Clausewitz Over the course of several months, our Rule of assessments likely very approximate, but that told me that he would have found the notion Law LEGAD and I developed Measures of Per- the actual conditions in the facilities and the of EBAO, as I understood it, to be folly. As to formance for the Afghan judicial system and sociology of the very communal Afghan people the impact of the lack of accurate Intelligence the prison system. We did not address the po- led to di erent performance results than had upon military decision-making, he had ob- lice, the third pillar of the basic “Cops, Courts, Western prisons been assessed. served that “even if we did know all the cir- Corrections” rule of law structure, because the e de nition of Rule of Law we were cumstances, their implications and complexi- police were being trained and assessed by the given to work with was, “ e Government of ties would not permit us to take the necessary Combined Security Transition Command— the Islamic Republic of Afghanistan develops steps to deal with them.”23 Afghanistan, a U.S.-led coalition e ort outside and maintains a justice system that is per- I was not convinced. Surely, I thought, of NATO. ceived as fair by the Afghan people, ensures just as the operational signi cance of law Developing these measures was not equality before the law, prevents o cial arbi- had changed since von Clausewitz’s time, the easy. First, although we received advice from trariness and is in accordance with interna- mo dern military headquarters infrastructure, rule of law advisors who had worked in Iraq tional law.” e de nition tracked with the with all of its data feeds and analysts, its com- a er the U.S. invasion on developing these approach set out in the Afghanistan National puters and reach-back capabilities, and its edu- sorts of metrics, their metrics were keyed to Development Strategy. cated, trained and experienced o cers, could a country that had had a sophisticated jus- burn through the “fog of war”.24 Surely, it could tice system that was present and e ective in Figure 1 is a diagram of the overall scheme that create an accurate, real-time picture of the op- its own way throughout much of the country, we came up with to both gather rule of law data erational environment that would lead to more and whose population was largely literate and from subordinate ISAF units and to push back e cient and e ective military e orts across the educated. As an example, for one Iraq-based down to them our analysis of the data for their spectrum of military activity. matrix, if the courts in a particular area had use in operations. e development of this ef- I should have listened to the Prussian. between zero and 25 per cent of their assigned fect would support the high level objective set

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12 The Three Swords Magazine 32/2017 Rule of Law Tasks and EBAO in Afghanistan: Courts and Corrections

Objective Good Governance

Measures of Effectiveness Measures of Effectiveness Courts Corrections Effect #5 Rule of Law

5A. Personnel 5D. Personnel

5B. Infrastructure 5E. Infrastructure

5C. Performance 5F. Performance

Indicators Indicators

Rule of Law Actions (Categories of Tasks and Activities - RC AO)

Rule of Law Tasks and Activities in Afghanistan (TF/PRT AO Level Projects)

Figure 1 Establishing rule of law and good governance in Afghanistan (HQ ISAF, 2009). RC stands for "Regional Command", AO "Area of Operations", TF "Task Force" and PRT "Provincial Reconstruction Teams". Photo by Torbjørn Kjosvold, Forsvaret out by the Afghanistan National Development assessing the performance of Afghan courts. Data Collection Failure Strategy of establishing good governance, rule ey were a mixture of external polling data, of law, and human rights in Afghanistan.25 statistics related to training of individuals on With a data collection plan in hand, we be- substantive law and record keeping systems, gan searching for useful and reliable data. As set out in Figure 1, for both the judiciary statistics on trials of a particularly vulnerable Our rst visit was to the Intelligence shop in and the corrections system, there were three population cohort (women) because of the ISAF Headquarters itself. We learned that the categories of Measures of E ectiveness that pervasive inequality they experienced in Af- Headquarters’ Intelligence operation was not would be assessed: Personnel, Infrastructure, ghan society, and information relating to Tali- focused on collecting and analyzing the sort and Performance. Supporting the analysis de- ban judges. of information we were looking for. eir fo- veloped in the Measures of E ectiveness were cus was geared toward collecting data that had similarly organized Measures of Performance, Based on our consultations with rule of law been determined to be useful for the conduct or “Indicators” as we called them. By exploring stakeholders in Afghanistan, we believed these of kinetic operations primarily. I pointed out the relationships between the judiciary Mea- to be most useful categories against which to that development in the rule of law was an ef- sures of E ectiveness and the corrections sys- collect data and develop analysis—the Mea- fect that the headquarters was tracking, but tem Measures of E ectiveness, we expected to sures of E ectiveness most likely to yield the this did not lead to any commitment to change develop actionable analysis of whether prog- most relevant information. By classifying the the existing collection processes. ress in the rule of law was actually being made. scheme as non-sensitive and releasable to the Particularly telling were our e orts to e Indicators were to be populated by data public, we expected to distribute the method- gather information on Measure of E ective- received from the regional commands, which ology widely among the di erent rule of law ness 5C.14, Districts with Shadow Govern- in turn collected data on tactical-level rule of stakeholders to assist us in collec ting data. ments, and Measure of E ectiveness 5C.15, law tasks and activities from the task force and First, however, we needed to pre sent proof of Shadow Governments Exercising Judicial provincial reconstruction team level. concept to the very patient Dutch Admiral Capacity. is sort of information was simply who was overseeing our work, to give him a not available from the Headquarters’ Intelli- As an example, Figure 2 (on page 14), shows snapshot of what this system would ge nerate gence sta . is led us to conduct an extensive the Measures of E ectiveness we deve loped for once implemented. open source search on the Internet to hunt

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Rule of Law and EBAO in Afghanistan: Courts and Corrections

MOEs COURTS

5A Personnel 5B Infrasturcture 5C Performance

Province District Province District 5C. 1 Judges Trained

5A. 2 Judges Assigned 5B.1 Courts 5B.9 % Prov. Ct. 5B.2 Courts 5C. 2 % Afghans Believe Operational Cases from Dist. Operational Courts Corrupt

5A. 1 Judges Assigned 5C. 3 Judges 5B.3 Courts in 5B. 4 Courts in Trained CoC Permanent Facilities Permanent Facilities 5A. 4 Judges Sitting 5C. 4 % Afghans Believe Baksheesh Useful 5A. 3 Judges Sitting 5B.10 Comms between Pros. & Police 5C. 5 Judges Trained ACAS 5A. 6 Prosecutors Assigned 5B.11 Cts 5B.5 Courts 5C. 6 % Afghans Would with Transport Renovated Use Informal Sys. 5A. 7 Prosecutors Assigned 5B. 6 Courts 5C. 7 Prosecutors External Security Trained 5A. 8 Prosecutors Trying Cases 5B.7 Courts 5C. 8 % Afghans Would using ACAS Use Def. Counsel 5A. 9 Prosecutors Trying Cases 5B. 8 Local 5C. 9 Prosecutors Magistrate Working Trained Inves. 5A. 10 Courts with Admin. Staff 5C. 13 Women Pros. 5C. 12 Women 5C. 10 Provinces Non-Crimes Convicted Non-Crimes ACAS Trained

5A. 11 Defense Counsel Registered 5C. 15 Shadow Government 5C. 14 Districts with 5C. 11 Admin. Judges Shadow Governments Trained ACAS

Figure 2 Establishing rule of law and good governance in Afghanistan (HQ ISAF, 2009). The graphic highlights the vast scope of challenges that the development of the rule of law faced in Afghanistan. down traces of Taliban judges. We found a fair able to provide the Admiral with a snapshot. o perations. Perhaps it was just as well. By the amount of information, mostly press reports, Rather, it was more like an un nished impres- time we distributed the Rule of Law Standard but could only estimate its reliability. Ironi- sionist painting. Importantly though, it high- Operating Procedure, I had realized that our cally, when we synthesized the information we lighted the vast scope of the challenges that small o ce would likely be overwhelmed with had developed, it presented a troubling picture rule of law stakeholders faced in Afghanistan, data corroboration and analysis if we were suc- of Taliban judges seizing justice market-share and identi ed the data gaps that needed to be cessful. Further, the ISAF mission was simply in many areas throughout the country—to the xed before the data collection scheme would not wired to provide us the support that would degree that we then felt compelled to classify work. It was su cient to receive the Admiral’s be necessary to turn the data and any analysis it secret. approval of our dra SOP for the data collec- into actionable Intelligence. Finally, despite the Our e orts at pulling data from other tion, and to then distribute it to the subordi- promise that EBAO showed in taking a com- sources were at best modestly successful. As- nate ISAF commands. plex process like rule of law and allowing it to sembling the information we could nd, and Unfortunately, by the time I le Af- be recognized for its operational value, EBAO images that would help paint a picture of the ghanistan in the summer of 2009, we had yet was not mature enough to deal with a compli- challenges that the development of the rule to receive a single report back that we could cated and devastated rule of law situation such of law faced in Afghanistan, we were still not use in this e ects based approach to rule of law as that presented by Afghanistan.26

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A Network and Unexpected unit located at the far end of the Headquarters “In the midst Target Audiences compound. German-led and internationally sta ed, it created print, television and radio of the focus While working at ACT and JWC as a trainer, messages published to Afghan audiences on I had become aware that there were certain themes that supported Afghan e orts to build on kinetic ISAF Headquarters functions that were recog- its security forces, to suppress poppy cultiva- nized as very important and which did receive tion, and to promote licit livelihoods. e operations, we the legal services they deserved, such as the CJPOTF Commander convened boards to re- Dynamic Targeting Cell. Others were also very view dra and nal versions of these products were concretely important in a “war amongst the people” but and to provide feedback, and was completely were not necessarily represented fully in the willing to have a LEGAD participate. working towards pre-deployment training we conducted. Once Over time, I assisted in di erent I arrived in Kabul, I sought out opportunities CJPOTF projects, such as providing a di er- goals that were to engage with units and sta sections that I ent English-speaking voice for the English- believed to be underserved with legal advice, language voiceovers of Afghan language mes- consistent with or whose missions needed to be better publi- sages. I was surprised that such things were cized so that others in ISAF would understand necessary, but the Commander explained to our values.” the important role they played in such a com- me that these voiceovers were useful to dem- plex and sprawling stability operation. onstrate to NATO audiences that the messages boxes made. Copies of the constitution were e ISAF Spokesman’s o ce was very were appropriate and well made. placed with the comment boxes and comment receptive to discussing how legal advice could Perhaps the most interesting CJPOTF slips in public places in Afghan communities, be useful in helping best formulate command project I assisted on was its ambitious plan to and people were encouraged to submit their communications, as was the Public A airs further rule of law development in Afghanistan anonymous comments about the constitution O ce (PAO). Buried in the operations and through engaging with Afghan audiences on and the rule of law. e concept seemed prom- planning shops we found the more junior ac- the provisions of the Afghan constitution. e ising as well as inexpensive, and I volunteered tion o cers who were responsible for dra - Special Forces project o cer secured a budget to brief it, comment box in hand, at the next ing changes to SOPs, and provided them as- to print several hundred copies in both Dari command update for the commander and the sistance in stating what they really wanted to and Pashtu, and to have comment collection sta . e brie ng was uneventful, but upon re- accomplish in a way that made legal sense in turning to my o ce and opening my e-mail, their rst dra . We worked with the Civilian BELOW: Afghan National Policewoman stands at I found several messages from sta o cers attention during a ceremony. Photo by Staff Casualty Cell, to nd ways to gather more ac- Sergeant Larry E. Reid Jr., U.S. Air Force whom I did not know personally, but who curate information about civilian losses, and to thanked me for the presentation. nd ways to minimize them. We also worked In sum, they were reassured to hear that with the Institute for International Humani- in the midst of the focus on kinetic operations, tarian Law at San Remo to sponsor an Afghan we were concretely working towards goals that attorney who worked for U.S. LEGADs as a were consistent with our values. Unexpectedly, translator to travel to Italy and participate in although they were not our intended target an international humanitarian law course, as audiences, at least our rule of law e orts were well as presenting his work in Afghanistan having an e ect on somebody. I re-learned the with the rule of law. lesson I had rst experienced while serving at Over time, my daily routine of visiting ACT and the JWC—it is counterproductive to di erent o ces took a path very unlike the ignore our internal audiences. one I was accustomed to in a national setting. I would go weeks sometimes without talking Hardwiring Lawfare to the ISAF Commander, and I worked infre- quently with the major sta section heads or Consistent with Secretary General Stolten- their deputies. I realized that I had developed berg’s de nition of lawfare, generating e ects a functional network that bore no resemblance on the perceptions and attitudes of internal to the Headquarters’ wire diagram, but one NATO audiences is a proper use of lawfare in a that actually allowed me to focus on providing manner consistent with our shared democratic legal advice to its best advantage. values. Further, as Professor Dunlap has noted, Part of my functional network was the “[a]ssuring troops of the legal and moral vali dity Combined Joint Psychological Operations of their actions adds to combat power.”27 Task Force (CJPOTF), which was an ISAF Similarly, Professor Dunlap notes that

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“[i]ntegral to defensive lawfare operations is Veri cation Teams” composed of “legal, op- tive NATO lawfare doctrine could be devel- the education of the host nation population, erational, Intelligence and PA specialists, orga- oped quickly, if at all. e creation of new teams and in e ect, the enemy themselves.”28 Profes- nized, trained and equipped to rapidly investi- or commands in the NATO context would sor Joel Trachtman has observed of the current gate allegations of incidents of high collateral presuppose a common operational basis, and international security environment that “[n]ot d am a g e .” 31 With an eye towards the reality of would require a dedication of resources that only is it a law-rich environment, but it is also a lawfare, Major James Burkart has done superb might strike some as unnecessarily expensive. surveillance-rich environment in which infor- work explaining the U.S. joint targeting cycle Further, these possibilities all have one thing mation about possible violations and evidence and breaking it down into its legal components in common that would work to frustrate the of possible violations are much more read- so that LEGADs can see where they are sup- e ciencies they sought to achieve—they are ily available than in the past.”29 Accordingly, posed to be adding value to the process and in hardwired solutions to a novel cross-cutting Professor Dunlap believes that “command- what fashion.32 operational theme, within the ordinary hier- ers should aim not to have a [LEGAD] at the Professor Trachtman argues cogently archical framework of military organizations. elbow of every ri eman, but rather to imbue for an actual lawfare “command” that would troops with the right behaviors so they instinc- be tasked speci cally with integrating lawfare Softwiring the Network tively do the right thing on the battle eld.”30 considerations into operations.33 How might we best make this happen? ese recommendations are worthy of I am mindful of the inevitability of hardwiring A review of the literature on lawfare serious consideration. On its face, Lieutenant in regular military organizations, and grudg- suggests a number of important steps and Colonel Moore’s suggestion to develop new ingly appreciative of the rigor and predict- measures that could be implemented to meet lawfare doctrine might appear to be relatively ability that it brings in a headquarters’ regular this requirement. As noted above, Lieutenant basic and practicable. However, having expe- work. On the other hand, my operational and Colonel Moore advocates the development of rienced in Afghanistan the role that di erent training experiences in NATO have persuaded doctrine to allow trainers and planners to be- national caveats to operations play in multi- me of the value of also taking a functionally- gin incorporating lawfare into their work with national e orts and how they re ect domestic networked path in determining how to best Training Audiences. Professor Dunlap has rec- legal and policy concerns, both published and implement lawfare consistent with the Alli- ommended the establishment of “Operational unpublished,34 I am not optimistic that e ec- ance’s Comprehensive Approach.

BELOW: An EXCON meeting between the Gender Advisors of 1 (German/Netherlands) Corps, the Joint Warfare Centre and the White/Grey Cell Humanitarian Affairs representative during TRIDENT JAGUAR 2017. See page 96 to learn more about "Women, Peace and Security". Photo by JWC PAO

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ABOVE: A simulated press conference during TRIDENT JAGUAR 2017. The media focus is on reporting the "effects"; changes to perceptions, behaviour and capabilities, which are created by the "actions". Photo by JWC PAO

S A FIRST STEP, I do not recom- What sort of working relationship does gether as a matter of practice. mend viewing “lawfare implemen- the RoE o cer have with the LEGAD? Or, Imagine a headquarters sta exercise the tation” as just another task to be with the o cer responsible for tra c control purpose of which was not just to train on the nely ground and si ed through SOPs?36 Does the o cer responsible for claims hybrid threat, but to also gather data on how the typical military sta ng pro- understand that well-trained and e ective RoE realistic events that could occur in hybrid- cess,A or so unusual a task that it needs to be mean that there will likely be fewer tra c ac- threat environments actually ow within and handled through some sort of EBAO-like pro- cidents resulting in claims for injury and dam- are acted upon by the Training Audience from cess. Instead, I recommend stepping back, age by local civilians?37 Does the RoE o cer a lawfare perspective. Rather than driving law- and analyzing NATO headquarters, units and work with the Gender Advisor (GENAD)?38 fare solutions from the top down, let us rst o ces, and associated organizations and ac- Has the RoE o cer taken the time to explain understand how we handle lawfare organical- tivities, to rst determine what role they might the RoE to the personnel in Strategic Com- ly—let us experiment and ensure that whatev- play in lawfare. How do they re ect our shared munications? What contact does the RoE of- er doctrine we develop is actually responsive to democratic values and the foundation of the cer have with the sta o cer who would be the way lawfare actually works. Importantly, let rule of law in what they do? responsible for monitoring whether any op- us also leverage in this exercise the expertise of For example, I am not particularly in- posing combatants were taken into custody the di erent Centers of Excellence whose work terested in the operations shop in general. by NATO forces?39 Does the Information Op- would impact most directly upon this, such as However, I would be most interested to know erations section understand the RoE, and why the Cooperative Cyber Defence Centre in Es- whether it has a dedicated Rules of Engage- messages to local civilians need to phrased tonia, the Strategic Communications Centre ment (RoE) o cer who is truly working across in particular ways? ese sta sections and in Latvia, the Civil-Military Cooperation Cen- di erent sta sections, rather than just serving individuals are all nodes in a functional net- tre in the Netherlands, and of course the new as the custodian of the caveats. I know that work based on the cross-cutting theme of law counter hybrid-threat center in Finland. Only RoE have a formal NATO de nition which is and the operationalization of legal principles. then will we be able to develop educational quite broad,35 but I also know that the most e connections between them are not likely and training curricula that will better prepare important rules are largely the implementa- re ected in any wiring diagram, nor do the our troops to react to misuses of lawfare in the tions of international humanitarian law. di erent nodes necessarily train and work to- manner Professor Dunlap envisions.

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Conclusion

Importantly, lawfare is nothing new. For ex- implementation of lawfare into NATO opera- Training Audiences could provide useful data ample, despite his dismissive assessment of tions, and it cannot come soon enough. for the researchers and writers at the European international law, von Clausewitz himself was In his article on NATO’s forward pres- counter hybrid-threat centre, and for national willing to use it to further military ends. ence in the Baltic partners, Dr. Martin Zapfe counter hybrid-threat e orts as well.  In 1831, von Clausewitz wrote an anon- describes the potential challenges these forces ymous letter to a German newspaper defend- might already face in dealing with hybrid ing the “uno cial” support nominally neutral threats, including the need for handling the in- Prussia gave to Russia during the Polish Up- formation aspects of potential accidents with rising that had begun in 1830. Refuting claims local national drivers, unfriendly civilian pro- by a senior Polish military o cial that Russia testers within ethnic Russian populations, in- had been supplied with Prussian food and ma- consistent NATO partner approaches to situa- teriel, and that Prussian soldiers were serving tions based on national caveats, and ethnically with Russian units, von Clausewitz argued that motivated terrorist violence.41 neutrality as understood in international law Polish municipalities that have hosted had been complied with by the Prussian state, U.S. troops as part of the forward deployment since only private Prussian merchants had sold of NATO forces have already su ered cyber- the items to the Russians. At the same time, attacks on upon their websites by unidenti ed © Erica Housekeeper he pointed out that many European powers hackers who apparently included pro-Russian COLONEL (Ret.) JODY M. PRESCOTT retired from 42 the U.S. Army Judge Advocate General's Corps in 2011 had chosen to ignore French assistance being content in their e orts. after 25 years of active duty service, and now works provided to both Polish and Belgian rebels in Given the importance of lawfare as an as an associate legal advisor for U.S. Immigration & 40 Customs Enforcement. In addition to his NATO tours, violation of the law of neutrality. aspect of NATO’s Comprehensive Approach, Prescott served two tours in Germany and two tours Lawfare can be both a sword and a the Joint Warfare Centre would be well po- in Alaska. He also served as an assistant professor at shield. e establishment of the European sitioned to begin exploring a so wiring ap- the U.S. Army Command & General Staff College and West Point. Prescott is now a lecturer at the University Centre of Excellence for Countering Hybrid proach to developing resilience in NATO of Vermont, where he instructs on environmental law, reats in Helsinki is a very positive step formations to the misuse of law and under- energy law and climate change, cybersecurity, and cyber conﬂ ict. His research and writing focus areas forward in resolving some of the hardwiring standings of democratic values by potential are the operational relevance of gender, cyber conﬂ ict, challenges facing the e ective and consistent adversaries. Its ability to test this with various climate change, and ethics and leadership.

Legal Advisor's from JWC and 1GNC during TRIDENT JAGUAR 2017. Photo by JWC PAO

KEY NATO CENTRES OF EXCELLENCE * Cooperative Cyber Defence Centre in Estonia www.ccdcoe.org/ * Strategic Communications Centre in Latvia www.stratcomcoe.org/ * Civil-Military Cooperation Centre in the Netherlands www.cimic-coe.org/

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ABOVE: The signing of a Memorandum of Understanding for the European Centre of Excellence for Countering ABOVE: Matti Saarelainen, the interim Director of the Hybrid Threats in the Finnish capital. Photo by Laura Kotila, Finnish Government (Prime Minister's Ofﬁ ce) European Centre of Excellence for Countering Hybrid Threats. Photo by Finnish Government (Prime Minis- ter's Ofﬁ ce)

An extract from the Speech by Mr Timo Soini, Finland's Minister of Foreign Affairs, at the signing of the Memorandum of Understanding establishing the European Centre of Excellence for Countering Hybrid Threats, 11 April 2017

"Finland will be proud to host, here, in Hel- us what is best in our societies—democracy, sinki, the European Centre of Excellence for openness, the free ow of information and Countering Hybrid Threats. We are proud, in freedom of speech, and economic freedom. particular, for two reasons. Firstly, the Centre What is needed in response is not only state, represents a concrete step in building resil- but societal resilience, a comprehensive ap- ience to hybrid threats in the EU Member proach to security. Countering hybrid threats States and NATO Allies. Second, the Centre is largely a matter of national competence. is a real boost for the cooperation between Vulnerabilities to hybrid threats, however, do the EU and NATO, facing the challenge of not limit themselves to national boundaries. hybrid threats hand in hand. We believe that hybrid threats need a coordinated response also at EU and NATO levels. "Countering hybrid threats is a European Cooperation based on lessons learned and priority. Resilience is one of the pillars of sharing expertise will contribute to aligning the EU's Global Strategy. Since the Joint national policies, doctrines and concepts. Framework in 2016, the EU has created an EU Hybrid Fusion Cell to analyze information "In dealing with this challenge, we rely on on hybrid threats. The Union has also taken our national strength: the Finnish model of RECOMMENDED READING steps in Strategic Communication, protec- comprehensive security, which is a whole-of- tion of critical infrastructure, energy security government approach. Our preparedness is Edited by Professors Corn, van Landingham and and other elds, relevant to enhancing our based on inter-agency cooperation, and on Reeves; Chapter 8, “Tactical Implementation of Rules of Engagement in a Multinational Force Reality” resilience. The next step is the establishment co-operation between the government, the — U.S. MILITARY OPERATIONS: LAW, POLICY AND PRACTICE is of this European Centre of Excellence. It will business community and the civil society. described on the Amazon website as follows: “Subject have a major role in promoting strategic level matter experts offer a unique insiders' perspective on understanding of hybrid in uencing and de- "We continue to build on a model that has how the law is actually implemented in a wide swath of veloping our policies. been developed ever since the Second military activities, such as how the law of war applies in World War. Resilience is at the heart of our the context of multi-state coalition forces, and whether "The use of hybrid strategies puts the international approach in safeguarding functions non-governmental organizations involved in quasi-military operations are subject to the same law. The book nal cohesion and resilience of our societies that are vital to our society in all situations." goes on to consider whether U.S. Constitutional 4th to the test. It seeks to turn our strengths into Amendment protections apply to the military's cyber- weaknesses by using as a weapon against The full transcript of the speech given by Mr Timo Soini can defense measures, [and] how the law guides targeting be found at formin. nland. decisions.” (https://www.amazon.com/U-S-Military- Operations-Policy-Practice/dp/0190456639)

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END NOTES:

1 See David S. Alberts, John J. Gartska, & Frederick P. 10 Lieutenant Colonel John Moore, Lawfare, 31 The 25 Afghanistan National Development Strategy (ANDS), Stein, Network Centric Warfare: Developing and Lev- Three Swords Magazine 38, 42-43 (January 2017). Ministry of Foreign Affairs, Islamic Republic of eraging Information Superiority, 2nd ED. (Revised) 11 See Lieutenant Colonel Martin Menzel, Knowledge Afghanistan, http://mfa.gov.af/en/page/6547/ 87-114, U.S. Department of Defense, C4ISR Coop- Development vs. Intelligence in NATO, 22 Journal afghanistan-national-development-strategy/afghani- erative Research Program Publication Series (1999). of the Joint Air Power Competence Centre 38, 40 stan-national-development-strategy-ands 2 Rick Maze, Radical Change Is Coming: General Mark (Spring/Summer 2016) (citing MCM-0041-2010, 26 See Robert Beeres et al., Mission Uruzgan: Collabo- A Milley Not Talking About Just Tinkering Around the Military Committee Position on the Use of Effects in rating in Multiple Coalitions for Afghanistan 282-287 Edges, ARMY 35 (January 2017). Operations, 20 July 2010). (2012) (describing the Netherlands' Task Force 3 Toni Pfanner, Interview with General Sir Rupert 12 Alan Beyerchen, Clausewitz, Nonlinearity and the Uruzgan efforts and challenges in using EBAO to Smith, 88 International Review of the Red Cross 719, Unpredictability of War, 17 International Security 59 track progress in the rule of law in Uruzgan Province) 719-22 (2006). (1992). 27 Dunlap, supra note 9, at 38. 4 Jody M. Prescott, Climate Change, Gender, and 13 Carl Von Clausewitz, On War 84, 113, 115, 119-22, 28 Id. Rethinking Military Operations, 15 Vermont Journal 153, 605 (Peter Paret & Michael Howard eds., 1976) 29 Joel Trachtman, Integrating Lawfare and Warfare, 39 of Environmental Law 766 (2014). (1832) [hereinafter ON WAR]. Boston College International and Comparative Law 5 Jody M. Prescott, Building the Ethical Cyber Com- 14 Id. at 75. Review 267, 271 (2016). mander and the Law of Armed Confl ict, 40 Rutgers 15 Emmerich de Vattel, The Law of Nations, or the Prin- 30 Dunlap, supra note 9, at 38. Computer & Technology Law Journal 42 (2014). ciples of Natural Law 280-283 (Charles D. Fenwick 31 Id. at 37-38. 6 Secretary General Jens Stoltenberg, Opening Ad- trans. 1964) (1758). 32 Major James A. Burkart, Deadly Advice: Judge dress, NATO Transformation Seminar, Washington, 16 Colonel Jody M. Prescott, The Development of NATO Advocates and Joint Targeting, The Army Lawyer 10 D.C. (25 March 2015), quoted in In Brief, The Three EBAO Doctrine: Clausewitz's Theories and the Role (June 2016). Swords Magazine (May 2015). of Law in an Evolving Approach to Operations, 27 33 Trachtman, supra note 29, at 281. 7 FAQ: Joint Framework on Countering Hybrid Threats, Penn State International Law Review 125, 156-157 34 Jody M. Prescott, Tactical Implementation of Rules of European Commission (Fact Sheet) (6 April 2016) (2008). Engagement in a Multinational Force Reality, 261-63, http://europa.eu/rapid/press-release_MEMO-16- 17 Michael Romba & Ralph Thiele, Networked Security Chap. 8, in U.S. Military Operations: Law, Policy and 1250_en.htm in the German Forces, 5 Journal of the Joint Air Practice (Geoffrey S. Corn, et al., eds, 2016). 8 NATO welcomes opening of European Centre for Power Competence Centre 29, 32 (2007). 35 MC 362/1, NATO Rules of Engagement 2 (2003). Countering Hybrid Threats, NATO (11 April 2017), 18 Prescott, supra note 16, at 127. 36 Colonel Jody M. Prescott, Training EBAO and Hu- http://www.nato.int/cps/en/natohq/news_143143. 19 Id. manitarian Considerations in Operations: Blue Force htm; Raine Tiessalo, Finland Prepares for "Manifold 20 Id. at 134. Looks Within, 8 The Three Swords Magazine 25 Warfare" as Russia Feeds Paranoia, Bloomberg.com 21 Id. (April 2007). (19 January 2017), https://www.bloomberg.com/ 22 Id. at 135. 37 Jody M. Prescott, The North Atlantic Treaty Organization, politics/articles/2017-01-19/fi nland-prepares-for- 23 On War, supra note 13, at 153. Chap. 15, in An Institutional Approach to the Responsi- manifold-warfare-as-russia-feeds-paranoia 24 Attributed frequently to von Clausewitz, but never bility to Protect, Gentian Zyberi, ed., 356-57 (2013). 9 Major General Charles J. Dunlap, Lawfare: A Decisive actually stated by him in On War. Eugenia c. Kies- 38 Jody M. Prescott et al., Gender, Law and Policy: Element of 21st Century Confl icts?, 54 Joint Force ling, On War Without the Fog, Military Review 85 Japan's National Action Plan on Women, Peace and Quarterly 34, 35 (2009). (September-October 2001). Security, 17 Asian Pacifi c Law and Policy Journal 1, 23-24 (2015). 39 Jody M. Prescott, The Convergance of Violence around a Norm: Direct Participation in Hostilities and Its Signifi cance for Detention Standards in Non- International Armed Confl ict, Chap. 4, in Detention of non-State Actors Engaged in Hostilities, Gregory Rose & Bruce Oswald, eds., 66 (2016). 40 Peter Paret, Clausewitz and the State: The Man, His Theories, and His Times 419 (citing Staats und Gelehrte Zeitung des Hamburgischen Unparteiischen Correspondanten (Hamburg), July 26, 1831, at 3). 41 Martin Zapfe, "Hybrid" Threats and NATO's Forward Presence, 4 Policy Perspectives 1, 2-4 (September 2016). 42 Pawel Sobczak and Lidia Kelly, Attacks on U.S. Linked Polish Sites back higher cyber spending: minister, Reuters (16 March 2017), http://www.reuters.com/ Flashback: The JWC Offi ce of the LEGAD, 2007, Ms Lone Kjelgaard and article/us-poland-defence-idUSKBN16M1G2 Colonel Jody Prescott. Photograph JWC PAO

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