Legal Assessment Of Hybrid Threats And Warfare Between War And Peace

Legal Assessment Of Hybrid Threats And Warfare Between War And Peace Presented by: Prof. Zombory Date:8 March 2024 Research Objectives - (i) To analyses hybrid threats and warfare under public int' law and EU law - (ii) To determine what legal consequences hybrid threats or campaigns trigger: legal regime applicable to war and armed conflicts? - (iii) To delineate the scope of lawful countermeasures to counter hybrid threats and attacks Content - I. Notion and origin of hybrid conflicts - II. Legal assessment - • Law on the use of force (jus ad bellum) • IHL (jus in bello) • International human rights law III. Final thoughts Hybrid Threats And Warfare - Not a legal term - No universally agreed definition - No common understanding - Goes by many names, e.g.: • Low-intensity asymmetric warfare • Fifth-generation warfare • Full-spectrum warfare • Ambiguous warfare • Grey-zone warfare - • Sub-threshold warfare • Political warfare etc. Characteristics: combination of various kinetic and non-kinetic means on land, sea and air, including overt and covert operations - • The use of unmarked special forces (e.g. Little green men) • Provoking social unrest • Information operations and propaganda (information warfare) • Cyberattacks • Generating food/ energy/ humanitarian crisis • Weaponization of migrants (coercive engineered migration) • Weaponization of law (lawfare) Frank G. Hoffmann (US) • “The blurring of modes of war, the blurring of who fights, and what technologies are brought to bear, produces a wide range of variety and complexity that we call Hybrid Warfare” New Type Of Warfare? - 2014 Russian campaign in Ukraine - archetypical example of hybrid warfare? - 2008 Georgia, 2006 Lebanon - Late 20th century/ 21st century • Instrumentalization of international law: prohibition of the use of force, right to self- defense • IHL, human rights law....: legal matrix • Legal imbalance between democratic states and autocratic states /non-state actors • Shift in geopolitical landscape after 1991: challenging the unipolar world order • Hybrid warfare: dark reflection of NATO's comprehensive approach Jus ad bellum - Article 2(4) UN Charter: • All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State (...)' • The prohibition of the use of force refers to armed force • Hybrid campaigns involving violent military acts can be classified as the illegal use of force (e.g. 2014 Russian hybrid campaign in Crimea) • Classifying hybrid campaigns which do not involve violent military acts as use of force is contrary to the prevailing interpretation • (E.g. 2021 migrant crisis on the Polish-Belarussian border) • The weapon-like destructive potential of cyber-attacks might legitimize an exception to the narrow interpretation of the term 'force' as solely military force - Article 51 UN Charter: • “Nothing in the present Charter shall impair the inherent right of individual or collective self- defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. (...)” • Armed attack > use of force (Art. 2(4) UN Charter) • Hybrid attacks remain below the threshold of an armed conflict: no right to selfdefense (,sub-threshold war') • NATO SG after 2014 Russian hybrid campaign in Ukraine: hybrid operations could reach the level of armed attack and lead to the invocation of Article 5 of NATO Treaty (violent hostilities?) • In any other cases, states targeted with hybrid threats below the threshold of armed attack can resort only to non-forcible countermeasures and peacetime regulations Jus in bello (IHL) - Art. 2 of the 1949 Geneva Conventions: • '(...) the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.' • The nature of hybrid conflicts (kinetic and non-kinetic means of warfare) makes it difficult to determine if hybrid conflicts qualify as armed conflicts that activate the IHL • International or non-international armed conflict? - The 1949 GC were drafted at a time when kinetic warfare was prevailing - Currently no legal basis to establish that hybrid conflicts which do not involve violent actions trigger the application of the 1949 GC - ICRC has started to consider the impact of new technologies for the applicability of IHL - Cyber operations with similar effects to classic kinetic operations (destruction of civilian or military assets or cause the death or injury) can amount to an armed conflict. - How to treat low intensity operations? International Human Rights Law Hybrid attacks can prompt different consequences, depending on whether they occur: - (i) in times of armed conflict: • states may derogate from their human rights obligations to the most far-reaching extent (Article 4 of ICCPR, Article 15 of ECHR) • derogation from the right to life possible • IHL applies as lex specialist to HR law • Since 2015, Ukraine has appr. 20 times notified the derogation on account of the 'armed aggression of the Russian Federation' - - (ii) in times of public emergency other than armed conflict: • states may derogate from their human rights obligations to a lesser extent • no derogation from the right to life (Article 4 of ICCPR, Article 15 of ECHR) • IHL not applicable (iii) in peacetime: • IHL not applicable • Derogation of human rights (Article 4 of ICCPR, Article 15 of ECHR) not possible International Human Rights Law - Main challenges of countering hybrid threats and warfare under the HR paradigm: • Legal qualification of hybrid attack as an armed conflict/ state of emergency/ peacetime • Balancing the interests of national security and state's sovereignty with the enjoyment of individual human rights (e.g. right to privacy, freedom of expression) Final Thoughts… - Not possible to conclude: • if hybrid attacks amount to factual combat, • if they are equal to the use of force, and • if they trigger legal consequences attached to the existence of armed conflict (right to self-defense, IHL), if yes, under what circumstances - Lack of conclusion: dichotomy between armed conflict and peace (does not correspond to the realities of international relations) - Adapting the existing legal framework to accommodate hybrid threats? e.g. benchmarks/ thresholds to classify hybrid hostilities - Creating common frame of reference through common exercises and simulations for easier detection and classification of hybrid threats