The North Atlantic Treaty Organization Headquarters in Brussels, Belgium. (Credit: Lisa Ferdinando)
Practice Notes
Legal Operations
The Use of Law as an Instrument of Power in the Context of Hybrid Threats and Strategic Competition1
By Rodrigo Vázquez Benítez, Colonel Kristian W. Murray, & Brigadier General Pavel Kriz
NATO’s Purpose
The purpose of the North Atlantic Treaty Organization (NATO) is to safeguard the freedom and security of its Alliance members by political and military means.2 In the military domain, the Alliance accomplishes this purpose by maintaining and developing its individual and collective ability to deter and resist armed attack, by consulting together whenever the security of one of the Alliance nations is threatened, and by defending Alliance territory and population from armed attack, as set out in Articles 3, 4, and 5 of the North Atlantic Treaty.3
The Alliance operates in an environment of adversaries who actively attempt to influence the decision-making process and to undermine NATO legitimacy by attacking the Rules-Based International Order (RBIO) to seek regional and global instability.4
However, in contrast, the cornerstone of all NATO military operations is
legal legitimacy based upon compliance with international law and
adherence to the rule of law.5 Unfortunately, NATO’s adversaries perceive the Alliance’s focus on legal legitimacy as a critical vulnerability to exploit and a method to subvert the Alliance’s political and public support. Specifically, NATO’s adversaries purposely seek to exploit the Alliance’s compliance to the rule of law and its compliance to law of armed conflict (LOAC) principles, purposely provide disinformation or distort the rule of law to justify their own policies, and purposely conduct malign hybrid activities below the Article 5 “armed attack” threshold in order to facilitate political objectives.6
NATO’s adversaries purposely seek to exploit the Alliance’s compliance to the rule of law and its compliance to law of armed conflict (LOAC) principles, purposely provide disinformation or distort the rule of law to justify their own policies, and purposely conduct malign hybrid activities below the Article 5 “armed attack” threshold in order to facilitate political objectives.
The North Atlantic Treaty Organization’s adversaries’ malign activities all have a direct and unique legal operations component which transcends the tactical, operational, and strategic domains. In the future, one can imagine multiple examples of how NATO adversaries will conduct malign legal operations to undermine Alliance activities as they have done in the past. Examples include adversaries doing the following:
- Violating the LOAC for their own benefit by employing civilian human shields,7 as the Islamic State of Iraq and Levant has done in Iraq and Syria;8
- Producing propaganda that blames NATO and its commanders for deliberately targeting civilians and petitioning international organizations for redress, as the Taliban has done against NATO in Afghanistan;9
- Attempting to shape and manipulate customary international law for their own benefit to gain territory and frustrate Allied freedom of maneuver by claiming historical rights over land and maritime territories in the Artic, the High North, and the South China Sea, as China10 and Russia11 have both done and continue to do; and
- Utilizing their own domestic law to conduct influence operations and justify military interventions, as Russia has done prior to its invasion of Crimea—and continues to do in Ukraine—by granting passports and pension rights to Ukrainian Russian-speaking minorities and subsequently alleging that their human rights were being systematically violated.12
Within this context, the law, and by extension lawyers, must work to identify and assess NATO adversaries’ misuse of the law and recommend appropriate lawful responses to adversaries’ malign legal activities. They must do this by providing principled nuanced advice on ways and means to achieve strategic and operational goals grounded in the law and ethics to preserve this legitimacy of Allied military operations. This is one of the primary responsibilities of the NATO Allied Command Operations Office of Legal Affairs (ACO OLA) and the focus of this article.
Challenges
In the context of strategic competition, the challenges posed by hybrid threats—and their materialization in Hybrid Warfare and Grey Zone environments13—have blurred the traditional border between peace and war.14
This, added to the contexts of 1) an increased use of
asymmetric/non-conventional warfare techniques—in peacetime, crisis, and
conflict—and 2) an enhanced role of (perceived) legitimacy, have made
law a particularly attractive area to be exploited in conjunction with
other instruments of power across the Diplomatic, Intelligence,
Military, Economic, Financial, Information and Legal (DIMEFIL)
spectrum.15 When it comes to strategic competition, this exploitation of what could be defined as the “legal domain”16 is referred to by the NATO ACO OLA as “legal operations.”17
Strategic Competition is a challenge currently felt across all NATO’s
core tasks. Since 2015, NATO’s response to hybrid threats has been
focused on improving Alliance situational awareness through intelligence
and information sharing and strengthening its deterrence and defense
posture.18 The North Atlantic Treaty Organization is also enhancing its crisis response procedures to guide decision-making in crises. It supports the comprehensive strengthening of Allied resilience to protect our societies and institutions, as well as to deter hybrid attacks by denying their success or by showing the capability to oppose them.19 These sometimes-preparatory hybrid actions seek to exploit vulnerabilities, precondition and disrupt NATO’s ability to take timely decisions, and weaken the Alliance’s resilience and ability to withstand or counter a conventional attack. While individual elements or actions may not necessarily be illegal or pose a threat in their own right, when combined they can threaten individual Allies or the Alliance and its cohesion.
The use of hybrid strategies in conflict is not new in human history; what is new for NATO is the way and the strengths in which its opponents apply a wide range of political, civil, and military instruments in a combined, systematic, and coherent manner. These strategies are aimed at particular vulnerabilities of targeted nations and international organizations in order to achieve strategic objectives.20 Furthermore, some hybrid strategies aim at complicating, delaying, and eventually impeding timely decision-making; others undermine the ability of an Ally, or the Alliance as a whole, to respond to such a threat swiftly, firmly, and effectively.21
In this context, the use of legal operations allows any potential opponent to have a significant impact while avoiding the use of kinetic means, and, hence, remain under the threshold of the use of force. Several state and non-state actors are increasingly using the legal domain in a context of strategic competition to achieve their strategic objectives and interests, not only tampering with the RBIO, but also destabilizing international relations.22
Legal Operations
Legal operations may be broadly defined as the use of law as an
instrument of power. The term encompasses any actions in the legal
domain by state or non-state actors aimed at, among others, gaining—or
undermining the opponent’s—legitimacy, advancing/undermining interests,
or enhancing/denying capabilities, at the tactical, operational,
strategic and/or (geo)political levels. Legal operations may be used
across the whole peace-crisis-conflict spectrum through, and in
combination with, a wide range of DIMEFIL tools that are not necessarily
of a legal nature.
For instance, legal operations may support or materialise a
psychological or an information operation against a military commander
by falsely accusing them—inside or outside the courtroom—of committing
crimes in the conduct of his duties; supporting a broader influence
operation; or providing citizenship or pension rights to minorities of a
neighbour state.23 They could also serve to hamper the activities of a competitor or opponent by passing new laws that allow for imposing sanctions on its leadership or embargoes on its assets, or by using international mechanisms to demand responsibility/accountability for its violations of international law.24 Other instruments of power can be used to change international law itself by applying diplomatic, political, economic, and even military pressure on other actors to accept new practices or interpretations more favorable to the state actor—such as current challenges to the interpretation of the Law of the Sea in particular regions.25 They may also consist of a “legal preparation of the battlefield”—i.e., actions aimed at shaping in advance the (appearance of) legality or legitimacy of an action normally involving the use of force, and thus minimise the consequences or limiting or delaying retaliation.26
Legal operations may thus encompass both the classical legal actions detachable from the conduct of hostilities and those which, on the contrary, are directly or indirectly involved in the achievement of the desired end-effects of an actor against another actor. They can be used as stand-alone actions, in conjunction with other instruments of power, or be part of a wider hybrid or conventional warfare strategy.
As opposed to legal operations, the commonly used term “Lawfare” is defined as “the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”27 Although this concept is often used to describe some of the actions encompassed by the term “legal operations,” it is less comprehensive, more limited in scope, and the object of intense academic controversies.28
The Preservation of the Rule of Law
As a result of NATO’s commitment to countering hybrid threats, ACO OLA has recognised the need to anticipate, detect, identify, assess, and respond to hostile legal operations through a uniformed methodology while recognizing the sovereign powers of the Allies, embracing the rule of law, and stressing the importance of a stable international legal framework. The latter are particularly relevant.
As expressed in the preamble to the North Atlantic Treaty, the NATO Allies are “determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law.”29 The preservation of the rule of law and a stable RBIO is, thus, one of the underpinning values of the Alliance.
Legal operations are a neutral concept, in the sense that their use might not necessarily entail an illegitimate use of the law. For instance, using or enhancing the law to enforce currently existing prohibitions, using domestic or international courts to demand responsibility/accountability for violations of the law, or passing new legislation or adopting new international instruments with the aim of preventing further breaches or erosion of the rule of law or the RBIO, represent what could be categorised as “white” legal operations. This is the use of law as an instrument of power not to challenge our values-based system, but to reinforce it.
Nonetheless, the use of law as an instrument of power does carry the risk of eroding the rule of law and, hence, any activities in the legal domain by the Allies must always look carefully at the overall system and how their individual and collective actions—not necessarily using the legal instrument of power—affect the integrity of the rule of law and the stability of the RBIO.
Operationalization
Departing from the concept of legal operations, the methodological framework used by ACO OLA for its analysis is the “Legal Operations Response Cycle” (LORC).30 Broadly, the response cycle is composed of four main phases to be followed when defending against any given hostile legal operation: Identification; Assessment; Strategy Definition; and Response. However, the LORC is only a process that needs to be integrated into (and supported by) effective actions and tools and wider processes to achieve success.
In this sense, legal vigilance, which is essential for the detection at an early stage of hostile legal operations and their potential effects before they are fully displayed, has become an integral part of the work of any NATO military legal advisor. Moreover, legal operations—like other activities in hybrid environments—are characterized by the need to include in their identification, assessment, and response a variety of actors within all instruments of power in the DIMEFIL spectrum. These would need to “interoperate” when assessing or responding to a hostile legal operation. For this reason, legal operations form part of planning, training, and exercising, which is essential for the awareness and readiness of all actors potentially involved, and contributes to increasing NATO’s resilience and deterrence posture.31 These activities underpin ACO OLA’s efforts in the field of legal operations, with legal vigilance as its main effort, and the preservation of the RBIO and the rule of law at its core.
Allies must be vigilant and work individually and collectively to detect where its competitors are adapting and undermining the RBIO. As they pledged in the preamble of the North Atlantic Treaty, they must work actively to strengthen and safeguard our rule of law system, denying the advantages that competitors can obtain by using instruments of power under— and above—the threshold of armed conflict.
Conclusion
The use of law as an effective instrument of power is not a new phenomenon, as demonstrated by the success of Hugo Grotius’s Mare Liberum. In 1493, Pope Alexander VI used a papal decree to divide the world’s newly discovered continents and oceans between Spain and Portugal.32
By the seventeenth century, Portugal’s sovereign control over parts of
the Atlantic and Indian Oceans gave it a monopoly on the East India
trade. Not being able to confront militarily the then-mighty Portuguese
navy, and in order to challenge its monopoly, the Dutch East India
Company hired the scholar Hugo Grotius, who developed a new legal
doctrine advocating for the freedom of oceanic navigation.33
This new doctrine was published in
Mare Liberum (Freedom of the Seas) in 160934 and was intensely promoted by the Dutch East India Company. Grotius’s novel arguments, which laid the foundations of the modern law of the sea and immensely benefited the Dutch East India Company, were accepted and remain controlling to this day.35
Our times face similar novelty. Traditional, kinetic deterrence is so successful that state and non-state actors are engaging in new, hybrid tactics to compete below the threshold of armed conflict. Moreover, due to the effects of globalization and almost ubiquitous public and personal access to information and opinion, perceptions of legality and legitimacy have gained renewed importance; thus, strategic competition has highlighted the relevance of law as an essential instrument of power amongst the other instruments in the DIMEFIL spectrum. The North Atlantic Treaty Organization’s opponents, including state and non-state actors, use legal operations extensively across the spectrum of peace to war all over the globe.
Consequently, the Alliance should not shy away from engaging its competitors in this “new” legal domain. Rather the opposite, Allies must be vigilant and work individually and collectively to detect where its competitors are adapting and undermining the RBIO. As they pledged in the preamble of the North Atlantic Treaty, they must work actively to strengthen and safeguard our rule of law system, denying the advantages that competitors can obtain by using instruments of power under—and above—the threshold of armed conflict. In order to achieve this effect, legal operations response, vigilance, training, education and exercises, and awareness are essential activities that NATO and its members should undertake and integrate in their tasks and processes; their ultimate aim should be to preserve the Alliance’s resilience, strengthen its defence and deterrence posture, and support and protect the fulfilment of its purpose. TAL
BG Kriz and Mr. Vázquez Benítez are legal advisors at the NATO ACO Office of Legal Affairs at the NATO Supreme Headquarters Allied Powers Europe.
COL Murray is the Director of the Legal Center at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. He was previously a legal advisor at the NATO ACO Office of Legal Affairs.
Notes
1. This article was originally published in the North Atlantic Treaty Organization (NATO) Legal Gazette. See Rodrigo Vázquez Benítez, Legal Operations: The Use of Law as an Instrument of Power in the
Context of Hybrid Threats and Strategic Competition, NATO Legal Gazette, Oct. 2020, at 138. It has been revised and reprinted with permission of the NATO Legal Gazette. The views presented in this article are solely those of the authors and do not necessarily represent the views of the NATO.
2. N. Atl. Treaty Org., Active Engagement, Modern Defence: Strategic
Concept for the Defence and Security of the Members of the North
Atlantic Treaty Organization
(2010).
3. North Atlantic Treaty arts. 3–5, Apr. 4, 1949, 63 Stat. 2241, 34
U.N.T.S 243.
4. Press Release, N. Atl. Treaty Org., Brussels Summit Declaration para. 1 (July 11, 2018).
5. N. Atl. Treaty Org., The Strategic Concept for the Defence of the North Atlantic Area encl. (D/C 6/1) para. 5; Michael N. Schmitt, The North Atlantic Alliance and Collective Defense at 70: Confession
and Response Revisited, 34 Emory Int’l L. Rev. 85, 100–03 (2019).
6. See generally Press Release, N. Atl. Treaty Org., Wales Summit Declaration, para. 13 (Sept. 5, 2014); Michael Aaronson et al., NATO Countering the Hybrid Threat, Prism, Apr. 2013, at 111; Sascha Dov Bachmann & Andres B. Mosquera, Lawfare in Hybrid Wars: The 21st Century Warfare, 7
J. Int’l Humanitarian Legal Stud. 63, 84 (2016).
7. “The term ‘human shields’ describes a method of warfare prohibited by [International Humanitarian Law] where the presence of civilians or the movement of the civilian population, whether voluntary or involuntary, is used in order to shield military objectives from attack, or to shield, favor, or impede military operations.” Human Shields, Int’l Comm. Red Cross, https://casebook.icrc.org/glossary/human-shields (last visited Sept. 14, 2021). See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 51(7), June 8, 1977, 1125 U.N.T.S. 3.
8. U.N.: ISIS Using “Tens of Thousands” as Human Shields in Mosul, CBS News (Oct. 28, 2016, 6:18 AM), https://www.cbsnews.com/news/united-nations-says-isis-using-tens-of-thousands-as-human-shields-in-mosul-iraq/. See also Neve Gordon & Nicola Perugini, Human Shields, Sovereign Power, and the Evisceration of the
Civilian, 110
Am. J. Int’l L. Unbound 329, 329 nn.1, 3 (2016). For a more recent example, see Mosul: Protection of Civilians Paramount as ISIL Intensifies Use of
Human Shields, United Nations Hum. Rts. (Mar. 28, 2017), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21452&LangID=E; Syria: Events of 2017, Hum. Rts. Watch, https://www.hrw.org/world-report/2018/country-chapters/syria# (last visited Sept. 14, 2021); Louise Pyne-Jones, ISIS Using Women and Children as Human Shields in Final Syria
Battles,
Int’l Observatory Hum. Rts. (Feb. 4, 2019), https://observatoryihr.org/news/isis-using-women-and-children-as-human-shields-in-final-syria-battles/.
9. Noor Khan, Afghan Civilians Said Killed in Clash, Wash. Post (June 30, 2007, 4:46 PM), https://www.washingtonpost.com/wp-dyn/content/article/2007/06/30/AR2007063000028_pf.html.
10. Sascha-Dominik (Dov) Bachmann & Andres Munoz Mosquera, China’s Strategic Preconditioning in the Twenty-First Century, Wild Blue Yonder (Apr. 13, 2020), https://www.airuniversity.af.edu/Wild-Blue-Yonder/Article-Display/Article/2145001/chinas-strategic-preconditioning-in-the-twenty-first-century/.
11. Elena Cirkovic, Russia, International Law, and the Melting of the Arctic, Völkerrechtsblog (Jan. 22, 2018), https://voelkerrechtsblog.org/russia-international-law-and-the-melting-of-the-arctic/.
12. Dan Altman, The Long History of “Green Men” Tactics—And How They Were Defeated, War on the Rocks (Mar. 17, 2016), https://warontherocks.com/2016/03/the-long-history-of-green-men-tactics-and-how-they-were-defeated/. See generally Jurij Harduk & Tomasz Stepniewski, Russia’s Hybrid War with Ukraine: Determinants, Instruments,
Accomplishments and Challenges, 2 Studia Europejskie 37 (2016).
13. See Josep Baques, Towards a Definition of the ‘Gray Zone’ (GZ) Concept,
Instituto Español de Estudios Estratégicos
26 (2017) (Spain).
The hybridization (or blurring) between military and civilian, or between military convention and the more typical role of the irregular forces, constitutes a new way of promoting and, if necessary, managing conflicts. The concept of a Hybrid Threat includes several possibilities, from the Hybrid War (HW) to Gray Zone (GZ). While the HW is a type of war, the GZ is characterized by being neither White (conflicts cease to be managed according to bona fide parameters) nor Black (without crossing the thresholds that would allow or demand an armed response, either from a legal point of view—taking into account the parameters of international law—and/or from a political and strategic perspective—taking into account US/NATO parameters . . . .
Id. (translated to English). See also A.B. Munoz Mosquera & N. Chalanouli, Decoding Gray Zone Environments in Legal Resilience (forthcoming 2021/2022).
14. See Nathan Freier, Strategic Competition and Resistance in the 21st Century:
Irregular, Catastrophic, Traditional and Hybrid Challenges in
Context
19 (2014). See also Munoz Mosquera & Chalanouli, supra note 13.
15. Diplomatic, Intelligence, Military, Economic, Financial, Information and Legal, or “DIMEFIL,” is a concept that refers to the multiple available instruments of state power. See Katerina Oskarsson, The Effectiveness of DIMEFIL Instruments of Power in the Gray
Zone, 1 Open Publ’ns (2017). While DIMEFIL is not an agreed upon NATO term, since 1983, NATO has included these concepts in its strategic concept. See strategic concept/concept stratégique, Allied Admin. Publ’n (AAP-06 2019), https://www.coemed.org/files/stanags/05_AAP/AAP-06_2019_EF.pdf (“The course of action accepted as a result of the estimate of the strategic situation. It is a statement of what is to be done in broad terms sufficiently flexible to permit its use in framing the military, diplomatic, economic, psychological and other measures which stem from it.”).
16. See generally Aurel Sari, Hybrid Warfare, Law, and The Fulda Gap 161, in Complex Battle Spaces (Christopher Ford & Winston Williams eds., 2019). See also Andres B. Munoz Mosquera & Abraham Munoz Bravo, The Legal Domain: A Need for Hybrid Warfare Environments, NATO, Dec. 2017, at 9–10.
17. A. Munoz Mosquera et al., The Path to Legal Resilience in Legal Resilience (forthcoming 2021/2022).
18. Deterrence and Defence, NATO, https://www.nato.int/cps/en/natohq/topics_133127.htm (June 25, 2021, 3:18 PM).
19. Id.
20. Frank G. Hoffman, Conflict in the 21st Century: The Rise of Hybrid
Wars (2007). See also Memorandum from the Ministry of Defence, subject: Written Evidence—Ministry of Defence (Feb. 12, 2016), data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/defence-committee/russia-implications-for-uk-defence-and-security/written/28854.pdf.
Hybrid warfare can be characterised as a comprehensive strategy based on a broad, complex, adaptive and often highly integrated combination of conventional and unconventional means. It uses overt and covert activities, which can include military, paramilitary, irregular and civilian actors, targeted to achieve (geo) political and strategic objectives. Hybrid warfare is directed at an adversary’s vulnerabilities, focused on complicating decision making and conducted across the full spectrum (which can encompass diplomatic, political, information, military, economic, financial, intelligence and legal activity) whilst creating ambiguity and deniability. Hybrid strategies can be applied by both state and non-state actors.
Id. para. 15.
21. Bachmann & Mosquera, supra note 6, at 86.
22. Khan, supra note 9.
23. Altman, supra note 12.
24. Bachmann & Mosquera, supra note 6, at 72–75.
25. Munoz & Chalanouli, supra note 13.
26. Id.
27. Charles J. Dunlap Jr., Lawfare Today: A Perspective, 3 Yale J. Int’l Affs. 146, 146 (2008). A contraction of the words “law” and “warfare,” lawfare is an academic concept developed by Major General (Retired) Charles Dunlap between 2001 and 2011.
28. See generally Wouter G Werner, The Curious Career of Lawfare, 43 Case W. Res. J. Int’l L. 61 (2010).
29. North Atlantic Treaty, 4 Apr. 1949, pmbl. (emphasis added).
30. Mosquera et al., supra note 17.
31. Id.
32. The decree was issued on 26 September 1493 and then modified by the Treaty of Tordesillas in 1494. See generally José Antonio Martínez Torres, “Gobernar el Mundo”: La polémica Mare Liberum versus Mare Clausum en
las Indias Orientales (1603–1625), 74 Anuario de Estudios Americanos 71 (2017). See also Christopher R Rossi, Treaty of Tordesillas Syndrome: Sovereignty ad Absurdum and the
South China Sea Arbitration, 50 Cornell Int’l L.J. 231, 244–45 (2017) (quoting Charles Gibson, Spain in America 15–18 (1966) (“discussing Alexander VI’s papal donations in three celebrated bulls of 1493, which resulted in the Treaty of Tordesillas in 1494”)).
33. See generally Torres, supra note 32.
34. Hugo Grotius, The Free Sea 13 (David Armitage & Knud Haakonssen eds., Richard Hakluyt trans., 2004).
35. United Nations Convention on the Law of the Sea art. 89, Dec. 10, 1982, 1833 U.N.T.S. 3, 397, 21 I.L.M. 1261 (1982) (“No State may validly purport to subject any part of the high seas to its sovereignty.”). See also id. arts. 89–94, 96–98.