I helped write a paper several years ago for RAND Corporation, regarding Russian Information Warfare. In my original draft I included “Lawfare” as one of the tools of Russian Information Warfare.
This article takes a slightly different but just as relevant perspective on Russia’s use of the law to support their hegemonic tendencies.
“Lawfare” – the forgotten element of Russia’s hybrid war against the West
Mark Voyger, Baltic Defence College, Tartu, Estonia
What is Lawfare?
The attempts by Russia under President Putin to assert its hegemonic ambitions against the countries in the former Soviet space (the Russia-perceived “Near Abroad”), have posed serious challenges not only to the security of the region, but to the international order of the 21st century. The Kremlin has employed a full range of measures in a comprehensive hybrid warfare campaign comprising non-military tools (political, diplomatic, economic, information, cyber), and military ones – conventional and covert. Given the prominent role of Russia’s information and cyber warfare, those two hybrid warfare domains have received most of the public attention and analytical effort so far. However, there is a third pivotal element of Russia’s hybrid toolbox – “Lawfare” (legal warfare), which is critically important and equally dangerous, but that has remained under-studied by the analytical community and is effectively still unknown to the general public. The term itself was coined in 2007 by the US Maj-Gen. (retired) Charles Dunlap, a professor of International Law at Duke University in North Carolina. Lawfare is the offensive exploitation of international and domestic law that is employed by the Kremlin against its adversaries abroad, but also against the Russian population. Given Lawfare’s central role in Russia’s comprehensive strategy, the West must develop a deeper understanding of this Russian hybrid warfare domain, and design a unified strategy to counter this major challenge to the European security architecture and the entire world order.
Why is Lawfare so Dangerous?
International law has evolved largely in order to deal with conflict between states by preventing war through negotiations and agreements; regulating the right to go to war and setting the rules of engagement; and normalizing post-war relations through ceasefires, armistices and peace treaties. International law in its modern interpretation was not intended to sanction and justify invasions and annexation of territories the way it is used by Russia in asserting its hybrid hegemony over the countries in its periphery. Customary international law, however, is not carved in stone, as it derives from the practices of states (“International law is what states make of it”). This fluid, interpretative nature of international law is being used by Russia extensively and in the most creative ways in its current hybrid campaigns. Unfortunately, the current international system based on the rule of law, the respect for treaties and the authority of international institutions has so far failed to shield countries such as Ukraine and Georgia from the ongoing Russian hybrid aggression.
While Russia does not exert full control over the international legal system, it is actively trying to erode its fundamental principles. Its ongoing lawfare activities have shaken the pillars of the post-WWII security architecture in Europe, such as the inviolability of national borders; the mutual respect for treaties and the full sovereignty of nation-states in Europe. Russia’s Lawfare employs the principle of ethnic self-determination to subvert the unity of its target-nations, and vague cultural concepts, such as “Russkiy Mir” to justify Russia’s self-proclaimed right to “humanitarian intervention” to protect “Russian speaking populations”. While information warfare can disrupt the public order and subvert the social cohesion of Russia’s adversaries, Russia’s ability to influence parliamentary elections across the EU and the US, and even the foreign policy choices of EU countries, is more than just the product of propaganda and disinformation, as it also represents a strategic-level Lawfare victory for Russia. At the tactical level, the deployment of Russian troops abroad requires a formal (quasi-legal) justification, which is also a form of Lawfare. On the other hand, the legalized use of force against popular protests to prevent or crush a “Colour Revolution” in Russia, is an example of domestic Lawfare.
How Does Russia Do It?
Historically, Russia’a Lawfare can be traced back to 1654, when the Tzardom of Muscovy signed a treaty of protection with the Ukrainian Cossacks; and 1774, when the Ottomans recognized the Russian Empire as the sole protector of the Balkan Christians. In both of those cases, Russia used those legal instruments as justification for its expansionism and territorial annexations, under the pretext of protecting those populations.
Some specific examples of modern Russian Lawfare used against its neighbours since 2014 have included: a draft amendment to the law on incorporating territories into the Russian Federation that was designed to allow the annexation of regions of neighboring states following popular local referenda; amended law granting Russian citizenship based on residency dating back to the USSR and the Russian Empire; “passportization” – the practice of giving away Russian passports to boost the number of Russian citizens in neighboring states (Georgia, Ukraine); “borderization” – the moving of the physical border deeper into the target-nation’s territory, or refusing to resolve the existing border disputes (Georgia, Ukraine, Estonia); the attempts to use the UN Security Council to sanction the opening of “humanitarian corridors” to protect civilians; the use of Kosovo and Libya as legal precedents for Russia’s aggressive actions on the international arena, and others. Currently, Russia has also launched a naval Lawfare campaign in the Black and the Azov Seas by obstructing the freedom of navigation there that has had a negative impact on the regional economy.
The above examples demonstrate the continuous Russian creativity in bending, twisting and reinterpreting international law to achieve its strategic goals regionally and globally. The danger exists that other states could follow suit and lay claims on contested territories populated with their compatriots or coreligionists. China has already applied some of the same Lawfare tools for its territorial claims in the South China Sea. The Middle East, Africa and Asia are particularly vulnerable given the arbitrary nature of many state borders there, but some NATO members are also not immune, especially those with large Russian-speaking populations.
The Lawfare Defence Network
Given that Lawfare is a pivotal element of the overall Russian hybrid warfare against the West, the response to it must be holistic and comprehensive in nature, too. It would require the building of a network of lawfare study programs (the “Lawfare Defence Network”) at various universities and think tanks – first and foremost in Ukraine, but also throughout Eastern, Central and Southern Europe – Estonia, Latvia, Czechia, Serbia, Georgia, as well as in the US and the UK.
This network’s ultimate goal would be to generate interest and support among the NATO and EU member-states’ legislators, political leadership and the public to establish a Lawfare Centre of Excellence (COE), just like the ones dealing with Strategic Communication (Riga), Cyber Defense (Tallinn), Energy Security (Vilnius), etc. It could be based in a NATO or EU member-state or in an aspirant country, such as Ukraine.
Once all those programs are established and fully operational at various think tanks and universities, they can focus on their specific country’s Lawfare challenges, in order to better leverage their national capabilities. The future Lawfare Centre of Excellence will then compile and analyze all that national input and provide practical feasible recommendations to the national governments and NATO, as a whole.