Swedish Defence University
Center for International and Operational Law
Does the threshold for an ‘armed attack’ within the meaning of
Article 51 of the UN Charter leave a state unable to act vis-à-vis
an opponent using hybrid warfare strategies?
BACHELOR THESIS 15 ECTS
Author: Victor Melin
Supervisor: Dr. Heather Harrison Dinniss 5th January 2021
Law of Military Operations Swedish Defence University Word Count : 8563
Table of Contents
Abstract 3Chapter 1: Introduction 4 1.1 Background 4
1.2 Research Question and Problem 4 1.4 Method 5
1.5 Delimitations 5 Chapter 2 Hybrid Warfare 5
2.1 Hybrid Warfare in the Legal Domain 5 Chapter 3 Self-Defence in the jus ad Bellum 6
3.1 Self-Defence in the Jus ad Bellum 6 3.2 What Constitutes and ‘Armed Attack’ 7
Chapter 4 Analysing Hybrid Warfare Means and Methods 12 4.1 Cyber Operations 12
4.2 Information Warfare 15
4.3 Non-State Actors and Proxy Forces 16
4.4 Other means of response: Countermeasures and Necessity 18 Chapter 5 Conclusions 20
Bibliography 21
Abstract
The purpose of this thesis to to investigate if the complex and ambiguous means of a hybrid warfare strategy in the context of the ‘armed attack’ threshold. The ‘armed attack’ threshold sits within the UN Charter article 51 and it constitutes the legal provision that the right to self-defence, both unilaterally and collectively, is only triggered in the event of an ‘armed attack’. It is therefore important to determine if this threshold can through the ambiguous and complex structure of hybrid warfare be circumvented or obfuscated to prevent, delay or weaken a State’s ability to act in self-defence or by other means. To examine this problem, this thesis approached it by describing the concept of hybrid warfare and the legal framework that constitute the ‘armed attack’ notion in the context of self-defence. And by, to the extent possible analysed if the hybrid warfare means; cyber warfare, information warfare and the use or support of proxy forces could individually amount to an ‘armed attack’ by viewing how these means were used in Ukraine by Russia. This thesis argues, that a hybrid adversary can through the inherently complex and ambiguous nature of hybrid warfare and its means, obfuscate its attribution under certain circumstance to prevent, limit or delay the ability of a State to act in self-defence or by other means.
Chapter 1 Introduction
1.1 BackgroundOver the past two decades Hybrid Warfare has edged its way into national security publications and military doctrine. The term itself is used to describe the phenomenon of turning asymmetric and unconventional means into a coherent strategy. Asymmetry and unconventionality are not new to the arena of war and have effectively been used throughout history to tilt the battle to your favour. Such examples can be found in the Roman strategy against Carthage, George Washington’s militia against regular British forces or the War of Independence against the Napoleonic armies. Albeit, the systematic strive of a modern hybrid warfare strategy to encompass a tailored and comprehensive use of conventional and unconventional means of war is a new threat that uniquely targets the legal domain. International law is a fundamental and essential element of hybrid warfare: law sets the 1
guiding conditions for how war is conceived of, and conducted. The Council of Europe’s Parliamentary Assembly recognised that a hybrid warfare strategy can exploit the stabilising functions of the law to gain a military advantage over their opponents by instrumentalising legal thresholds and taking advantage of structural weakness within the international legal system. The 2
advance of hybrid warfare threatens the traditional definition of war and what it entails. A Hybrid warfare strategy converges war into multi-disciplinary approaches which turns what has been means and methods of peace into means and methods of war. The result is that war now encompasses legal and illegal, civil and military, kinetic and non-kinetic and high-tech and low tech means all in the same battle-space. 3
1.3 Research Question and Problem
Does the threshold for an ‘armed attack’ within the meaning of Article 51 of the UN Charter leave a state unable to act vis-à-vis an opponent using hybrid warfare strategies?
The ‘armed attack’ threshold sits within the UN Charter article 51 and it constitutes the legal provision that the right to self-defence, both unilaterally and collectively, is only triggered in the event of an ‘armed attack’. It is therefore important to determine if this threshold can through the ambiguous and complex structure of hybrid warfare be circumvented or obfuscated to prevent, delay or weaken a State’s ability to act in self-defence or by other means.
1.4 Method
This thesis was researched using the legal doctrinal method. 1.5 Delimitations
A hybrid warfare strategy can encompass a wide range of unconventional and conventional means and methods. For the purposes of this thesis cyber operations, information warfare and the use or
Frank Hoffman, ‘On Not-So-New Warfare: Political Warfare vs. Hybrid Threats,’ War on the Rocks 1
blog( July 28, 2014) <http://warontherocks.com/2014/07/on-not- so-new-warfare-political-warfare-vs-hybridthreats/> accessed 15 November 2020
Legal Challenges Related to the Hybrid War and Human Rights Obligations Council of Europe Report: 2
Parliamentary Assembly, Committee on Legal Affairs and Human Rights (2018) Doc 14523
Andres B Munoz Mosquera, Sascha Dov Bachmann & J Abraham Munoz Bravo, ‘Hybrid Warfare and the 3
Legal Domain’ (2019) Terrorism and Political Violence’ 31:1, 98-104 <https://doi.org/ 10.1080/09546553.2018.1555975> accessed 15 November 2020
support of proxy/non-State actors are considered the main means of a hybrid warfare approach. Other conventional or unconventional means of warfare are outside the scope of this thesis analysis. The following means and methods are deliberately excluded from this thesis: terrorist attacks, nuclear weapons and economic warfare.
Chapter 2 Hybrid Warfare
2.1 Hybrid warfare in the legal domainThe integrated nature of ambiguity and complexity associated with hybrid warfare can constitute grave security and legal challenges for those states who adhere to international law with good faith and within the commonly agreed and established frameworks governed by the principles of the rule of law. A hybrid warfare adversary is capable of exploiting international law as a force multiplier 4
using its structures to the disadvantage of those who operate under the aegis of democratic procedures and adhere both to international law and morality. The strategic aim of a hybrid warfare approach is to create and maintain an asymmetrical legal environment that strengthens and favours its own operations while weakening and disadvantaging the opponents. Moreover, a hybrid approach is characterised by its ability to use multiple asymmetric, unconventional and conventional means specifically tailored to achieve distinctive effects that are coherent with the overall military objective all in the same battle-space. This makes hybrid warfare inherently different to more traditional attrition-based warfare where to opposing forces try to match the strength of the other either through quality or quantity.5
The concept of exploiting international law in war is commonly referred to as lawfare and can be viewed as a hybrid warfare means or method on its own merits. Dunlop who probably first coined 6
the term lawfare in 2001 amended his previous definition in 2007 to that lawfare is “the strategy of using or misusing law as a substitute for traditional military means to achieve a operational objective”. In perspective, the relatively new concept of hybrid warfare and what it entails can be 7
seen as a continuation of political warfare were the state employ all the means available, short of war, to achieve its objectives. To a state like Russia the idea of leveraging all the means of national 8
power available to achieve a objective is not a new mindset. The Russian military are now viewing warfare as a domain that no longer exclusively relies on military means. In a graph adapted from an article written by Russian General Valery Gerasimov its illustrated that for Russia war is now
Munoz Mosquera, Dov Bachmann & Munoz Bravo (n 1) 98-104. 4
Patrick J Cullen & Erik Reichborn-Kjennerud, ‘Understanding Hybrid Warfare’, (January 2017) MCDC 5
Countering Hybrid Warfare Project, 8-12 <https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/647776/dar_mcdc_hybrid_warfare.pdf> accessed 19 November 2020.
Munoz Mosquera, Dov Bachmann & Munoz Bravo (n 1) 98-104. 6
Charles J Dunlap ‘Lawfare Today: A Perspective’ YALE Journal of International Affairs, 7
(2008) 146–154 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1698168> accessed 20 November 2020.
Sean Monaghan, ‘Countering Hybrid Warfare: So What for the Joint Force?’ National Defense University 8
Press PRISM Vol 8 No 2, 88-92 <https://ndupress.ndu.edu/Portals/68/Documents/prism/prism_8-2/ PRISM_8-2_Monaghan.pdf> accessed 16 November 2020.
conducted by a roughy 4:1 ration of non-military and military measures . Arguably, Russian 9
operations in Crimea and eastern Ukraine displayed a new type of Russian warfare that fits into the recognised aspects of hybrid warfare. Nonetheless, Russian military is adamant that they do not use a hybrid warfare strategy but ‘a rose by any other name…’ , the essential point is that non-military 10
measures are, in a hybrid approach no longer just that, they have transgressed the common dichotomous view between war and peace. As NATO Secretary General Jens Stoltenberg said, ‘Hybrid is the dark reflection of our comprehensive approach. We use a combination of military and nonmilitary means to stabilize countries. Others use it to destabilize them’. Moreover, it is also 11
important to distinguish between non-military means and conventional statecraft. Hybrid warfare means include diplomatic pressure, disruption of diplomatic ties and economic sanctions that are viewed by the West as nonmilitary measures to avoid war, whereas Russia considers these measures war. Hybrid warfare can be described using an inverted version of Clausewitz most prominent 12
observation; the continuation of war by other means.
Chapter 3 Self Defence in the Jus ad Bellum
3.1 Self Defence in the jus ad BellumThe right to self-defence in international law is the State’s inherent right to use force in order to protect itself from an armed attack.
The inter-State use of force is prohibited by Article 2(4) of the UN Charter, which states that:
“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, or in any other manner inconsistent with the Purposes of the United Nations”.13
The only exception to the general prohibition on the use of force, is found at Article 51 of the Charter:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.14
Charles Bartles ‘Getting Gerasimov Right’ (2016) 96 Military review, 30-38 <https://www.researchgate.net/ 9
publication/329933852_Getting_Gerasimov_Right> accessed 25 October 2020.
A common reference to Shakespeare Play Romeo and Juliet. The quote itself means that what matters is 10
what something is, not what it is called.
Jens Stoltenberg, NATO Secretary General ‘Keynote Speech by NATO Secretary General Jens Stoltenberg 11
at the opening of the NATO Transformation Seminar ‘ (March 25 2015) <https://www.nato.int/cps/en/ natohq/opinions_118435.htm> accessed 27 October 2020.
Bartles (n 9) 34. 12
Charter of the United Nations, (24 October 1945) 1 UNTS XVI, Art. 2. 13
Charter of the United Nations, 24 October 1945, 1 UNTS XVI. Art. 51. 14
The right to self-defence is intended to be of a temporary character, meaning that it exists until the Security Council takes measures that are deemed necessary to maintain international peace and security.
There is however no unanimous agreement on the precise interpretation of Article 51 and the specific customary origins of the right. There are also different interpretations to what extent art. 51 exists alongside a general right of self-defence being present in customary laws, or if Article 51 and its specific prerequisite for an ‘armed attack’ superseded that right. There are two general schools 15
of thought here, one restrictive view and one expansive. For the ICJ and its restrictive view, an ‘armed attack’ is the prerequisite for the lawful exercise of self-defence. This prerequisite was asserted in the Nicaragua case judgement, in the Case Concerning Oil Platforms and the Armed 16 17
Activities on the Territory of the Congo Case . Determining what constitutes an ‘armed attack’ and 18
who launched it, is therefore crucial. Furthermore, it is important to distinguish between the ‘use of
force’ and an ‘armed attack’ these are standards that have different normative purposes. The notion of ‘armed attack’ relates to whether the State targeted can lawfully respond to an act with a ‘use of force’ without violating the prohibition of using force in the process. In contrast, the ‘use of force’ notion relates to wether a State has violated Article 2(4) of the UN Charter and the customary rights therein.19
3.2 What constitutes an ‘Armed Attack’
There are three recognised main elements that can be used to identify an ‘armed attack’: First
Ratione Materie; the material element, or what acts qualify as ‘armed attacks’. Second Ratione Personae: where did the attack come from. Third Ratione Temporis; the temporal element, when
does an ‘armed attack’ take place. 20
The ratione materie constitutes the material element of the notion of an ‘armed attack’.
In the Nicaragua (merits) case , the International Court of Justice (ICJ) used Article 3 of the GA 21
Res 3314 (XXIX) (14 December 1974) Definition of Aggression as an outline in order to identify which acts qualify as ‘acts of aggression’ when determining whether or not an ‘armed attack’ has taken place. The definition of Aggression in resolution 3314 has since been used in subsequent 22
Olivier Corten, ‘The Controversies Over The Customary Prohibition On The Use Of Force: A 15
Methodological Debate’ (2005) European Journal of International Law 16, 804-821 <http://www.ejil.org/ pdfs/16/5/326.pdf> accessed 27 November 2020
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v.United 16
States of America) (Merits) [1986]ICJ Rep 14, [211].
Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America, International Court 17
of Justice) [2003] ICJ [13].
Armed Activities on the Territory of the Congo (the Democratic Republic of the Congo v Uganda) [2005] 18
ICJ.
Michael N. Schmitt (gen ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations 19
(2nd edn, CUP 2017) 337.
Thomas Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and 20
Practice (eBook, Cambridge University Press 2010) 126-326. Nicaragua (n 16).
21
UNGA Res 3314 (XXIX) (14 December 1974) UN Doc A/RES/3314. 22
cases as a source for the determination of an ‘armed attack’. The acts that are included in the definition are:
‘Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein’.23
However, as article 4 states:
”The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter”. 24
Additionally, in most situations, an ‘armed attack’ will qualify as an ‘act of aggression’, but an ‘act of aggression’ will not always qualify as an ‘armed attack’. The notion of ‘armed attack’ has therefore, a more strict meaning than an ‘act of aggression’. This understanding is supported by the State parties to the draft definition of aggression provided to the Special Committee on the Question of Defining Aggression, which assert that ‘armed attack' is the most serious form of aggression. In order to distinguish and qualify an act as the more grave ‘armed attack’ instead of an ‘act of aggression’. The Special Committee gave reference to the requisite ‘scale and effects’ constituting the gravity and effects element. This element relates to the severity of the act and what the damage 25
or effect was on the receiving state. As with other notions and thresholds, what the gravity requirement entails, is not unanimously agreed upon. But the essence of it, is that the minimum gravity threshold does not present a problem in cases of large scale conventional attacks that deployed massive territorial invasions, as for example in the case of the 1990 Iraqi invasion of Kuwait, or the Korean War in the 1950s. Instead, it is lower intensity and smaller-scale attacks that are difficult to qualify as armed attacks. One scholarly view, supported by State practice indicates that the gravity threshold for a indirect and direct 'armed attack’ against a State, by another State, can be determined by the likely consequences of the incident, instead of the actual casualties or
UNGA Res 3314 (XXIX) (14 December 1974) UN Doc A/RES/3314 art, 3. 23
ibid art, 4. 24
Nicaragua (n 16) [195]. 25
damage that was inflicted. An example is a missile attack, which was intended to cause damage or 26
casualties.
The accumulation of events theory or pinprick doctrine, contains the idea that if an act is not of sufficient gravity or intensity to qualify as an ‘armed attack’ by itself but is part of a comprehensive or coherent series of acts of force directed against a State, then the effects caused by accumulating all the acts put together could qualify as an ‘armed attack'. Even though this theory has never been successfully acknowledged as justification for the ‘use of force’ in self-defence in court, it is present in academic dialogue and has never been directly dismissed in the courts. It was originally invoked by Israel to justify its military incursion in Lebanon in the 1970s. Israel argued that terrorist attacks committed by Palestine Liberation Organisation (PLO) did not individually amount to armed attacks, but they constituted an ‘armed attack’ and triggering a right to individual self-defence under article 51, when taken together. This theory finds its source in the gravity threshold set out by the Court with regard to self-defence. The ICJ have indirectly acknowledged the existence of the accumulation of events theory as a legal entity on at least two occasions.
In the DRC v Uganda case the court examined if a series of attacks could be cumulative in nature: 27 ‘Even if this series of attack could be regarded as cumulative in character, they still remained non-attributable to the DRC’. In the Nicaragua (merits) case, the ICJ investigated if Nicaraguan 28 29
border attacks aimed at Costa Rica and Honduras could qualify as an ‘armed attack’, the ICJ stated that: ’Very little information is however available to the Court as to the circumstances of these incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes as amounting, singly or collectively, to an “armed attack” by Nicaragua on either or both States’. In both of these cases, the accumulation of events theory served as a 30
justification basis for the ICJ to ascertain if multiple events could together fulfil the gravity requirement. Thus, establishing that an ‘armed attack’ had occurred and trigging the right to use force in self-defence. Nevertheless, it can be construed that even if the ICJ were unsuccessful in proving that an ‘armed attack’ had taken place in these two cases, there might be a situation where a series of attacks could be considered as cumulative in character enough to reach the sufficient gravity.
The ratione personae is the second element in the ‘armed attack’ requirement for self-defence. This element revolves around ‘who’ or ‘what’ entity conducted the illegal use of force. This element is particularly important in cases that include the indirect use of force by a State through non-state actors or proxy forces that can be attributable to the State. The use of non-state actors by a State as an act of aggression was characterised in Art. 3 (g) of the Definition of Aggression: ‘The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein’. This legal provision was confirmed in the Nicaragua case and 31
subsequently reaffirmed in the DRC v Uganda case . In the latter case, the ICJ ruled that Uganda’s 32 actions in the DRC could only be qualified as self-defence if they were able to demonstrate
Ruys (n 20) 152. 26 Congo (n 18). 27 ibid [146]. 28 Nicaragua (n 16). 29 ibid. 30 Nicaragua (n 16) [195]. 31 Congo (n 18) [168] 32
‘satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC’. In practice, the prevailing rule holds that the closer the nexus between the State and the 33
non-State actor is, the more plausible it is there will be evidence of attribution. Derived from this principle is the ‘complete dependency’ category and test. The ‘complete dependency’ category encompass the groups, people or entities where the nexus between them and the State is so entwined that they act in ‘complete dependency’ of the State. The ‘complete dependence’ category stems form Article 4 (2) of the Articles on the Responsibility of States for Internationally Wrongful Acts:
‘A State organ includes ‘any person or entity which has that status in accordance with the internal law of the State’.34
The ICJ has confirmed that the conduct of persons, groups or entities may be attributable to the state if it operates as a ‘de facto’ organ of the state, the identified threshold criterion, ‘complete dependence’ test was confirmed in Nicaragua. 35
In addition to the ‘complete dependence’ category and test, there is the ‘effective control’ category and test, which derives from Article 8 (ASR):
‘conduct of a person or group of persons shall be considered an act of a State under international law if the person or persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’.36
The applicable test to ascertain if conduct is ‘under the direction and control’ of a State, crucially rests on whether or not the State has ‘effective control’ over that specific conduct. Furthermore, it is important to establish a ‘specific factual relationship’ between the State and the person, group or entity engaging in conduct of said State, where the State ‘directed and controlled the specific operation and the conduct complained of was an integral part of that operation’. The ‘effective 37
control’ test was as case law, established in Nicaragua and reaffirmed by the ICJ in the Bosnian 38
Genocide case. There is also the possibility that a State ‘acknowledges and adopts’ the conduct in 39
question as its own , this was confirmed as case law in the Tehran Embassy case. 40 41
The temporal element of the ‘armed attack’ requirements, ratione temporis, specifies in what moment in time a ‘use of force may’ be characterised as an ‘armed attack’. This topic is widely debated in academia and its doctrine is today, far from determined. The most prominent point of
ibid [146] 33
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful 34
Acts (ASR) (November 2001) UNGA Doc A/56/10, art 4(2). Nicaragua (n 16) [109-110]. 35 ASR (n 34) art 8. 36 Ruys (n 20) 413. 37 Nicaragua (n 16) [115] 38
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of 39
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [1996] ICJ Rep, [406]. ASR (n 34) art 11.
40
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran) 41
disagreement is that of the legality of anticipatory self-defence. There are two general schools of thought on anticipatory self-defence, a restrictive interpretation of article 51, and a expanded interpretation. The former argues that the qualifying phrase ‘if an armed attack occurs’ and in circumstances where an ‘armed attack’ already has taken place or is ongoing are the requirements for a State to practise lawful self-defence. Whereas, the expanded interpretation argue that the use 42
of force in self-defence may not exclusively be used as a response to an ‘armed attack’ but also in situations where there is an ‘imminent threat’ of an ‘armed attack’. A prevalent assessment held 43
today suggests that the right to defence includes a very narrow right of anticipatory self-defence, that is based on the customary rights and formula established in the Caroline case. The 44 45
Caroline test stated that the necessity of anticipatory self-defence must be ‘instant, overwhelming
and leaving no choice of means, and no moment for deliberation’. In 2004 the UN High-level 46
Panel on Threats, Challenges and Changes supported the more expanded interpretation and qualified it by stating that:
‘according to long established international law, [a threatened State] can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate’
The notion of a imminence and what constitutes as a ‘imminent threat’ has served as the main point of contention in the debate but it is also the focal point of arguments for scholars and States that believe that confining self-defence entirely to ongoing attacks is far too restrictive. The more 47
restrictive interpretations hold that imminence should be viewed as more of a temporal concept, meaning that what defines a ‘imminent threat’ of ‘armed attack’ is that it is about to occur. In contrast, the more expansive interpretations are less concerned with the temporal conceptions of imminence and instead focus more on causality and necessity. The United States have long 48
spearheaded the expansive interpretation, a recent example is the justification used for the strike against Soleimani in January 2020. Statements from President Trump, the National Security Advisor and the Secretary of State all contained continued reference to ‘imminent’ attacks by Iran against the US which called for necessary action against Soleimani. Trump told reporters: 49
Niaz A Shah, ‘Self-defence, Anticipatory Self-defence and Pre-emption: International Law’s Response to 42
Terrorism’ (2007) 12 Journal of conflict & security law, 97 ibid 98.
43
The Caroline v. United States [1813]11 U.S. 7 (Cranch 496) 44
George Nolte & Albrecht Randelzhofer, ‘Action with Respect to Threats to the Peace, Breaches of the 45
Peace, and Acts of Aggression, Article 51’ in Bruno Simma et al ‘The Charter of the United Nations: A Commentary’, (3rd ed), 1423, [52].
Caroline test derived from The Caroline v. United States [1813]11 U.S. 7 (Cranch 496) 46
Marko Milanovic, ‘The Soleimani Strike and Self-Defence Against an Imminent Armed 47
Attack’ (EJIL:Talk!, 7 January 2020) <https://www.ejiltalk.org/the-soleimani-strike-and-self-defence-against-an-imminent-armed-attack/> accessed 25 November 2020
Milanovic (n 47). 48
ibid. 49
‘Soleimani was plotting imminent and sinister attacks on American diplomats and military personnel but we caught him in the act and terminated him.’50
Chapter 4 Analysing Hybrid Warfare Means and Methods
A hybrid warfare strategy employ a wide array of means and methods that can be deployed simultaneously or individually. The three main recognised methods outside the use of overt military force are cyber attacks, information warfare and the use of proxy or non-State forces.
The Ukraine conflict can be viewed as one of the first practical examples of hybrid warfare. Russia’s strategy embodied the comprehensive and integrated use of cyber attacks, disinformation operations and use of non-State actors. While, the ‘Ukraine conflict’ is perhaps the most commonly used name for the conflict, it is nonetheless, a difficult situation to classify under international humanitarian law. The various stages of the crisis are not only characterised by different geographical circumstances, but they also display a significant variance in in terms of extent and intensity of the hostilities. However, as confirmed by the International Criminal Tribunal for the Former Yugoslavia in its judgements in the Tadić appeals, it is entirely possible for a situation or 51 conflict to be characterised in some areas as a non-international armed conflict, while another area is characterised as a international armed conflict. On this premise, this thesis will treat and distinguish between the events in Crimea and those of Eastern Ukraine (Donbass) as separate situations.
In this chapter this thesis shall examine the competency of the notion ‘armed attack’ and if a hybrid warfare strategy can limit an opponents ability to act. The three main methods of hybrid warfare used in Ukraine will be tested against the legal framework.
4.1 Cyber operations
Cyber operations in the conflict between Ukraine and Russia were mainly of three types: Website defacement, malware infection and DDoS (Distributed Denial-of-Service). Website defacement and DDoS attacks can be characterised as a form of cyber-disruption. While malware infection is more accurately described as a form of cyber-espionage where its utility lie in battlefield preparation and intelligence collection for other cyber attacks or kinetic operations, demonstrating that the cyber realm can be seen as a tool that support physical warfare.52
DDoS attacks against various Ukrainian websites was observed during the protests and during the annexation of Crimea. During the annexation of Crimea the cell phones of prominent Parliament 53
members were targeted and overwhelmed with SMS to delay, or prevent them from coordinating an effective response. Additionally the government website was made inaccessible for 72 hours by
Mark Hosenball, ‘Trump says Soleimani plotted 'imminent' attacks, but critics question just how soon’ 50
Reuters (January 3 2020) <https://www.reuters.com/article/us-iraq-security-blast-intelligence/trump-says-soleimani-plotted-imminent-attacks-but-critics-question-just-how-soon-idUSKBN1Z228N>accessed 12 December 2020.
Prosecutor v. Dusko Tadić, International Criminal Tribunal for the former Yugoslavia, Case No. IT-94-1-A, 51
(Appeals Judgment) [1999].
Marie Baezner & Patrice Robin, ‘Cyber and Information Warfare in the Ukrainian Conflict’ (2016) 2 52
Centre for Security Studies, 10 <https://www.researchgate.net/publication/
322364443_Cyber_and_Information_warfare_in_the_Ukrainian_conflict> accessed 22 October 2020. Baezner (n 52) 10.
DDoS attacks. Another function of DDoS attacks are that they can serve as a distraction, drawing 54
the attention away while other malicious cyber activities are conducted.
The first consideration to make as to whether a cyber attack would amount to an ‘armed attack’ is if the ratione materie requirement is fulfilled, which in its most recognised interpretation requires that a ‘use of force’ has occurred or is threatened. Article 3 of the GA Res 3314 does not list cyber operations as one of the act of aggression. However as stated in Article 4 of Resolution 3314 the list is not exhaustive and ‘the Security Council may determine that other acts constitute aggression under the provisions of the Charter’. The Tallinn Manuals panel of experts confirmed with a 55 56
reference to the Nuclear Weapons advisory opinion that ‘the mere fact that a computer (rather than 57
a more traditional weapon, weapon system, or platform) is used during an operation has no bearing on whether that operation amounts to a “use of force” ...but rather...the consequences of the operation and its surrounding circumstances’. Considering that cyber attacks can manifest 58
themselves in numerous ways the Tallinn Manual determined that a cyber attack is capable of being a use of force as shown in Rule 69 - Definition of use of force: ‘A cyber operation constitutes a use of force when its scale and effects are comparable to non cyber-operations rising to the level of a use of force’. The prevailing view of the approach of the authors of the Tallinn Manual for 59
identifying if a cyber operation would amount to a ‘use of force’ relies on the severity of that attack. In other words, the ‘scale and effects’ approach is a criterium that considers the quantitative and qualitative factors in a cyber operation. The Tallinn Manual identified the following eight non exhaustive factors for determining if a cyber operation amounted to a ‘use of force’:
A) Severity, cyber operations which results in physical harm to individuals or property will qualify as a use of force.
B) Immediacy, cyber operations that cause immediate consequences are more likely to qualify as a use of force.
C) Directness, cyber operations where cause and effect are closely correlated are more likely to qualify as a use of force.
D) Invasiveness relates to how intrusive the cyber operation is to the targeted State. For example, the forced intrusion by cyber means into a military system is deemed more invasive than a intrusion in a more open civilian system.
E) Measurability of effects. This factor refers to the conception that States are more willing to qualify acts as a use of force when the consequences of that act are evident.
F) Military character, if it can be established that there is a clear nexus between a cyber operation and military operations the more likely it is to be characterised as a use of force.
G) State involvement. The presence of a distinct and evident nexus between a cyber operation and a State makes it more likely for a cyber operation to be qualified as a use of force.
H) Presumptive legality. International law is referred to as being of a prohibitive nature. Thus, acts that are not forbidden are presumptively legal. 60
Applying the factors and qualifying thresholds derived from the Tallinn Manual to the the website defacement, malware infection and DDoS (Distributed Denial-of-Service) used against Ukraine.
ibid. 54
UNGA Res 3314 (XXIX) (14 December 1974) UN Doc A/RES/3314 art, 4. 55
Schmitt (n 19) 328. 56
Legality of the threat and use of nuclear weapons (Advisory opinion) [1996] ICJ Rep 226-67, [38-39]. 57 Schmitt (n 19) 328. 58 ibid rule 25, 300. 59 Schmitt (n 19) 334-336. 60
The evidence suggests that the consequences of these operations did not cause any direct or 61
immediate physical harm to neither people nor property and are therefore less likely to qualify as a ‘use of force’ under the first three factors; severity, immediacy and directness that constitute the material aspects of ‘ratione materie’ and temporal aspects of ‘ratione temporis’. Additionally, the cyber means used where not proven to be of a military character in terms of them not constituting either military action or specifically targeting military installations, systems or institutions. Thus, the cyber operations does not qualify a ‘use of force’ under the presumption of closeness to the military nexus (factor F). When it comes to (factor G) State involvement and the attribution of the State constituting the ‘ratione personae’ for cyber operations, the question is especially complicated. Attribution in cyberspace is a complicated task particularly when a State uses proxies. If a cyber operation is a success the State benefits from the attack, but if it is a failure the State can dissociate itself from these proxy groups. Two pro-Russian hacker groups that were active in 62
cyber operations against Ukraine are CyberBerkut and APT28. CyberBerkut have supported the separatist groups in Ukraine and if the group consists of pro-Russian Ukrainians or Russians remains highly uncertain. It is believed that CyberBerkut benefits from funding and expertise from 63
the Russian government. The hacker group APT28 is believed to have ties to Russian Main 64
Intelligence Directorate (GRU) but this remains unconfirmed. A malware traced back to APT28 has been found in Ukrainian government networks and in the smartphones of artillery troops. While 65
the use of malware for espionage or other purposes is highly invasive, there is no explicit prohibition in international law on espionage and cyber espionage does not per se amount to a ‘use of force’ when taken individually. 66
The two pro-Russian hacker groups named are only two examples, at least ten pro-Russian hacker groups have to a varying degree been identified, but there is also the possibility that some of these groups are the same but operate under different names. The Tallinn Manual confirmed that the 67
rules on attribution will be in force in the event of a cyber attack. Therefore, a cyber operation by 68
a non-State actor who is under ‘complete dependence’ or under the ‘effective control’ of a State, can be attributable to the State. Albeit, the inherent ambiguity of cyber operations renders attribution difficult. The website defacement, malware infection and DDoS operations identified in Ukraine would in theory not be characterised as a ‘use of force’ when viewed as individual acts. However, the Tallinn Manual stated that the International Group of Experts recognised that there are grounds for treating a series of cyber operations that individually fall below the threshold for an ‘armed attack’ as a ‘composite armed attack’. If the determinative factor is that the cyber operations stems from the same originator and if they were taken together they would meet the requisite scale and effects. 69 Baezner (n 52) 10. 61 ibid. 62 ibid. 63 Baezner (n 52) 12. 64 Baezner (n 52) 13. 65 Schmitt (n 19) 335 66 ibid. 67 ibid 344. 68 Schmitt (n 19) 332 69
4.2 Information warfare
Closely linked to cyberspace and its operations are information warfare or (IW). Information warfare encompass operations designed to influence, destabilise and acquire tactical information. A common view held in Russian government, military and academia is that information is a flexible form and source of power. As Maj. Gen. Ivan Vorobyev and Col. Valery Kiselyov have written that information is ’not just an addition to firepower, attack, manoeuvre, but transforms and unites all of these’. Information warfare today acts both as a hybrid means and method on its own merits and 70
as an enabler for hybrid strategies. The Russian information warfare machinery began its operations in Ukraine well before the start of the conflict and throughout the entire course of events.
Russian IW operations functioned as the spark that fuelled the Euromaidan protests in 2013 by financing protesters and by controlling the flow of information through all spectrums of communication to further destabilise Ukrainian government and shape the narrative of the 71
conflict, both through social and formal media. The IW operations acted as a smokescreen 72
enabling Moscow’s to conceal or obfuscate that Russian military personnel were engaged in Ukraine. The concepts ‘friction’ and ‘fog of war’ both symbolise the uncertainty and 73
unpredictability of warfare when waging it in practice instead of in theory. These unpredictable hurdles used to be ‘natural’ uncontrollable events such as human error, weather, terrain and the like, but today IW and its integrated part in a hybrid warfare strategy function as a combination of the old concepts creating a almost insurmountable wall of narrative-focused attacks that create what can be called a ‘fictive reality’. 74
A disinformation operation that is designed to influence and destabilise political affairs such as the ones in Ukraine would likely amount to a breach of sovereignty. Considering that in a non-cyber context the International Court of Justice has previously through cases such as Nicaragua , and 75
Corfu Channel given examples of the violation of a State’s sovereignty under the principle of non-76
intervention. The same principles should apply in a cyberspace context (of which information warfare is part of), as these principles apply in every other domain of statecraft and State activity. This was confirmed in both 2013 and 2015 by the UN Group of Government Experts reports.7778
Margarita Levin Jaitner, ‘Russian Information Warfare: Lessons From Ukraine’ (2015) NATO Cooperative 70
Cyber Defence Centre of Excellence, 89 <https://ccdcoe.org/uploads/2018/10/ Ch10_CyberWarinPerspective_Jaitner.pdf> accessed 14 December 2020
Ibid. 71
Maria Snegovaya, ‘Putin’s Information Warfare in Ukraine’ (2015) Institute for the Study of War 72 <www.understandingwar.orgsitesdefaultfilesRussian%20Report%201%20Putin%27s%20Information%20Wa rfare%20in%20Ukraine%20Soviet%20Origins%20of%20Russias%20Hybrid%20Warfare.pdf> accessed 8 December 2020 Ibid. 73
Alya Shandra & Robert Seely, ‘The Surkov Leaks The Inner Workings of Russia’s Hybrid War in 74
Ukraine’ (2019) Royal United Services Institute for Defence and Security Studies, Ch 3 <https://rusi.org/ sites/default/files/201907_op_surkov_leaks_web_final.pdf> accessed 25 November 2020.
Nicaragua (n 16) [195]. 75
Corfu Channel Case (United Kingdom v. Albania) (Merits) ICJ [1949]. 76
Group of Governmental Experts on Developments in the Field of Information and Telecommunications in 77
the Context of International Security (2013) UNGA Doc A/68/98.
Group of Governmental Experts on Developments in the Field of Information and Telecommunications in 78
Furthermore, a breach of sovereignty has long been explicitly prohibited in the UN Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty . This declaration further distinguishes between interference or 79
intervention and armed activities by listing them as separate acts : ‘no State shall organize, assist, 80
foment, finance, incite or tolerate subversive, terrorist, or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another state’. The 81
principle of non-intervention is based upon the principle of sovereignty and prohibits a State to intervene within another State’s sovereign powers by coercive means. The ICJ in Nicaragua 82 characterises coercive behaviour as pressure on the target State, designed to deprive or limit its ability to exercise its sovereign powers. Even if a specific operation of information warfare would be a breach of sovereignty it would not qualify as a ‘use of force’ and therefore neither be characterised as an ‘armed attack’ for the purposes of self-defence. Despite the fact that cyber operations and IW operations are active in the cyberspace domain they produce stark differences in the effects they cause. A cyber operation has the capability of causing physical damage to both persons and property and thereby enabling it to be classified as a ‘use of force’.
4.3 Non-State actors and proxy forces
The utility of proxy forces for a hybrid warfare strategy lies in the State’s ability to conceal its own involvement. By obscuring its relationship to proxy forces a hybrid warfare adversary limits the possibility of attribution and consequently the targeted State’s ability to act in self-defence.
In Crimea Russian forces were deployed without any identifying insignia acting under the disguise of local self-defence forces. They slowly started to assert their presence and take control over the Crimean peninsula and interfered and blockaded Ukrainian military objects and bases. Soon ‘little green men’ became the unofficial name for these soldiers. The initial denials that the soldiers were Russian, were given by high level officials and by President Putin himself. After more than a year, Russia confirmed that the unidentified troops were in fact, Russian military. 83
The proclamation of the establishment of the contested Donetsk and Luhansk people’s Republics sparked further supposed Russian offensives in the Donbass region. In the Donbass region, Russia supported the separatists forces by sending supplies, ammunition and armaments but also by directly contributing with Russian military personnel. Similar to the Russian troops in Crimea the 84
ones participating in Donbass wore no identifying insignia. One of the ranking rebel leaders in Donetsk, Alexander Zakharchenko said that around 3,000-4000 Russian citizens are within their
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of 79
Their Independence and Sovereignty, UNGA Res 2131 (XX) (21 December 1965) UN Doc A/RES/ 2131(XX) (1970). ibid. 80 ibid [2]. 81 Nicaragua (n 16). 82
Carl Schreck, ‘From “Not Us” To “Why Hide It?”: How Russia Denied Its Crimea Invasion, Then 83
Admitted it’ RadioFreeEurope RadioLiberty ( 26 February 2019) <https://www.rferl.org/a/from-not-us-to-why-hide-it-how-russia-denied-its-crimea-invasion-then-admitted-it/29791806.html> accessed 29 November 2020
Marcin Marcinko & Bartosz Rogala, ‘The Ukrainian Crisis: A Test for International Law?’ (2017) 5 Polish 84
ranks. Zakharchenko also said that they joined voluntarily and that these ‘current Russian military’ 85
does so when they are on leave. 86
The extent of Russia’s support for the separatist or (proxy forces) through the sending of arms and armament gained renewed attention when the MH17 Malaysian airlines flight was shot down. Originally attributed to the pro-Russian separatist the subsequent official investigations proved 87
that the plane was shot down with a Russian ‘Buk Telar’ missile system that belonged to the 53rd Anti Aircraft Missile Brigade from Kursk. The Dutch investigation did discover evidence that the missile system had come with a Russian ‘crew’. The evidence is a telephone conversation where a suspect asks if ‘it’ referring to the missile system had come with a crew.88
Examining Russia’s use of unidentifiable troops through the legal framework, the ratione personae aspect and what it entails is the most applicable of the three elements for determining if the criteria for an ‘armed attack’ has been fulfilled. Additionally, as the Article 2(4) of the UN Charter 89
prohibits the interstate ‘use of force’. The targeted State of a indirect ‘use of force’ by a State through proxy or non-State forces need to attribute the attack to the origin State. Since the right of self-defence against an aggressor State only arise when that attack can be attributed to that State. As demonstrated in Case Concerning Oil Platforms , and expressed in the Advisory Opinion of the 90
ICJ in Legal Consequences of the Construction of a Wall that ‘the existence of an inherent right of self-defence in the case of armed attack by one State against another State’ . As discussed in 91
chapter three of this thesis, the use of of proxy or non-State actors as a indirect ‘use of force’ by a States has a relatively developed framework established in the International Court of Justice’s decision in Nicaragua . For the conduct of the pro-Russian separatists in the Donbass region to be 92 attributable to Russia, the qualifying factor is if the group act in ‘complete dependency’ of Russia or if Russia exercise ‘effective control’ over the group. For the separatist groups conduct to be attributable to Russia for its ‘complete dependence’ on Russia, it effectively requires them to operate as a de facto organ of the state as per Article 4 (2) of the Articles on the Responsibility of States for Internationally Wrongful Acts. Which they evidently do not. Equivalently, the evidence 93
suggesting that Russia exercised ‘effective control’ over the separatist groups would have to be much more specific. The current evidence of Russia’s supply of arms and armament to separatist groups, specifically in the incident of MH-17, is not sufficient to prove that Russia had ‘effective control’ of the specific military operation where the MH-17 were shot down. As the ICJ clarified in
‘Ukraine crisis: “Thousands of Russians" fighting in east’ BBC News (28 August 2014) <https:// 85
www.bbc.com/news/world-europe-28963310> accessed 14 December 2020. ibid.
86
Official Dutch Safety Report ‘Crash MH17 17 July 2014’ (13 October 2015) <https:// 87
www.onderzoeksraad.nl/en/page/3546/crash-mh17-17-july-2014>accessed 14 December 2020.
MH17 Witness Appeal and Trial Information (May 2018, June 2019) < https://www.politie.nl/themas/ 88
flight-mh17/witness-appeal-crash-mh17-june-19.html> accessed 14 December 2020 Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art. 2
89
Oil Platforms (n 17). 90
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory 91
Opinion) [2004] ICJ Rep 136, [139]. Nicaragua (n 16).
92
MH17 Witness Appeal and Trial Information (n 88). 93
Nicaragua , the mere organisation, financing, training or general support of a non-State actor was 94 not enough to attribute its conduct to the supporting State.
In the case of the first, unidentified ‘little green men’ in Crimea later, admitted and identified as 95
Russian military personnel claiming to exercise self-defence in the protection of Russian nationals. Russia had previously in the Georgia conflict relied on the principle of self-defence of nationals to justify its actions. However, any justification provided by Russia for its intervention in Crimea on 96
the basis of self-defence of nationals would have to proven by facts. Its highly unlikely that the Russian justification would pass through any scrutiny since the majority of nationals in Crimea are Ukrainian and there is no evidence of a Russian minority requiring defence. Consequently, its probable that the Russian intervention in Crimea by military personnel would amount to a ‘use of force’ and as per the legal framework on ratione materie the intervention is likely to be qualified as an ‘armed attack’. In contrast, it is unclear if the Russian soldiers in the Donbass region supporting the separatist were following orders from their military superiors or if they were leaving the regular Russian forces when they were on ‘leave’ and if this has any considerable effect on the situation is up for debate. Ukraine has been persistent in stating that Russian regular forces are actively 97
participating in the fighting. As there is no definitive evidence of the extent of Russian military 98
personnels involvement in Donbass its likely that it would not amount to a ‘use of force’.
In a situation where a State facing an opponent using hybrid warfare strategies similar to the one in Ukraine where cyber operations, information warfare and the support for proxy forces all function as a coherent strategy. Where, the likelihood is that the operations and events would when taken individually not qualify as a ‘use of force’ and thus unable to reach the stringent threshold of an ‘armed attack’. The targeted State has a limited ability to act in self-defence since the purpose of the ambiguous hybrid strategy is to obfuscate the attribution of proxy forces and connected cyber operations through disinformation and denial. States facing a ‘use of force’ that does not amount to an ‘armed attack’ can resort to other lawful measures, such as actions consistent with the plea of necessity or countermeasures99 100.
4.4 Other means of response: Countermeasures and Necessity
A State can be entitled to take countermeasures as a response to a breach of an international legal obligation that is owed by another State. As such countermeasures refers to reprisals not constituting a ‘use of force’ where the wrongfulness of the act is precluded if the operation qualifies
Nicaragua (n 16). 94
Schreck (n 83). 95
Christine Gray, ‘The Protection of Nationals abroad: Russia’s Use of Force in Georgia’, in Constantinides 96
& Zaikos (eds), The Diversity of International Law (2009) Ch 10, 133.
Robert Heinsch, ‘Conflcit Classification in Ukraine: The Return of the “Proxy War” (2015) 91Stockton 97
Center for the Study of International Law, 330 <https://digital-commons.usnwc.edu/cgi/viewcontent.cgi? article=1264&context=ils> accessed 5 December 2020.
‘Ukraine Crisis in Maps’ BBC News (18 February 2015) < https://www.bbc.com/news/world-98 europe-27308526>accessed 14 December 2020. ASR (n 24) art 25. 99 ASR (n24) art 22. 100
as a countermeasure.101 The sole purpose of countermeasures is to cause the State who is responsible for unlawful action to cease those acts or actions and if possible provide assurance or guarantee of non-repetition and make reparations. Countermeasures are devised as a remedy where the sought outcome for the States involved should be to return to lawful relations between them.102
As stated in Article 52 on the Responsibility of States for Internationally Wrongful Acts there are conditions for when a State can resort to countermeasures:
1. Before taking countermeasures, an injured State shall:
(a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two;
(b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights.103
Its important to note that countermeasures, similarly to self-defence is not a lawful response to a cyber operation by a non-State actor or an operation by a proxy force unless that specific operation is attributable to that State.104
Necessity relates to the set of circumstances where the wrongfulness under international law of an act is precluded if the situation is based on ‘necessity’. Set forth in Article 25 of the Articles on State Responsibility105 the principle of ‘necessity’ refers to a situation where a State’s ‘essential interests’ faces ‘grave and imminent peril’.106 The plea of necessity is perhaps the only option for a response that would otherwise be considered unlawful in a case where a non-State actor has conducted a cyber operation or other act that does not qualify as an ‘armed attack’. Necessity does not depend on any prior unlawful conduct by another State, therefore there is no underlying requirement to attribute conduct to a State.107 Additionally, there are circumstances in which both countermeasures and the plea for necessity work in tandem. For example, State A launches a cyber operation that is internationally wrongful against State B. State B responds by taking a countermeasure against State A. The countermeasure causes unintentional collateral effects on State C and these effects violate an obligation owed by State B to State C. State B’s response’s wrongfulness is not precluded as a countermeasure, since State C was not responsible for the cyber operation that triggered the countermeasure from State B. On the other hand, if the essential interests of State B are severely affected and the countermeasure taken were the sole option for protecting those interests, the wrongfulness of the collateral effects on State C can be precluded on the basis of necessity.108 Consequently, A State facing a unlawful ‘use of force’ that does not amount to an ‘armed attack’ can respond with countermeasures against the responsible State as a means to cause the ‘use of force’ to cease. Likewise, it is possible for a State to act in otherwise unlawful
Schmitt (n 20) Rule 20. 101 ibid rule 21. 102 ASR (n 24) art 52. 103 Schmitt (n 20) Rule 20 [7]. 104 ASR (n 24) art 25. 105 Schmitt (n 20) Rule 26. 106 ibid Rule 26 [10]. 107 Schmitt (n 20) Rule 26 [7]. 108
ways in response to acts that present a grave and imminent danger to the State’s ‘essential interests’ if it is the only means of ensuring its safety.
Another possibility as discussed in Chapter three, is that a if an act does not amount to an ‘armed attack’ by itself but is part of a comprehensive or coherent series of acts of force directed against a State, then the effects caused by accumulating all the acts put together could qualify as an ‘armed attack’. Arguably, the most applicable theory to encompass the ambiguous means and methods of hybrid warfare and its legal implications, is the the accumulation of event theory. While the theory is accepted in academia and by a number of States, and it is confirmed by the ICJ109 in Nicaragua that composite activities can be qualified together to ascertain if they amount to an ‘armed attack’ collectively, the theory remains relatively overlooked. Perhaps, an increase in conflicts or uses of force that display hybrid warfare characteristics will determine its factual relevance and application as justification for self-defence in international law.
Chapter 5. Conclusions
Hybrid warfare is a concept that describes the use of asymmetric and unconventional means in a coherent strategy. The strategic aim of a hybrid warfare strategy is to operate below the recognised thresholds in international law. Namely the ‘armed attack’ threshold. A hybrid warfare strategy uniquely targets and affects the legal domain. Furthermore, a hybrid warfare strategy exploits non-military means, transforming them into means of war.
The only exception to the prohibition on the ‘use of force’ in the UN Charter is through self-defence in the event of an ‘armed attack’. The legal framework for qualifying a ‘use of force’ as an ‘armed attack’ comprises of three fundamental elements; ratione materie, ratione personae and ratione
temporis. These elements identify decisive factors such as how, who and when a ‘use of force’
amounts to an ‘armed attack’. These elements were to the extent possible applied to the main individual means used in a hybrid strategy to investigate if they could constitute a ‘use of force’. The hybrid means analysed were cyber operations, information warfare and the support and use of proxy forces. It was found that these individual means of a hybrid warfare strategy, when using the presumed hybrid strategy of Russia in the ‘Ukraine conflict’ as a basis. Were, when utilised as a part of the inherently complex and ambiguous method consistent with hybrid warfare. Unlikely to individually qualify as a ‘use of force’ and could thus, neither amount to an ‘armed attack’ for the purposes of self-defence within the meaning of Article 51 of the UN Charter. The ‘armed attack’ threshold can be circumvented by the ambiguous means and methods of a hybrid approach that obfuscate attribution and thus, consequently can prevent, limit or delay the opponents ability to act both in self-defence and through other means. A State facing a ‘use of force’ that does not amount to an ‘armed attack’ can in specific circumstances resort to other lawful responses, such as actions consistent with the plea of necessity or countermeasures. The possibilities for a State to use the accumulation of events theory to justify the qualification of individual activities as part of a comprehensive and composite attack for purposes of self-defence remains, relatively uncharted. The conclusions in this thesis testify to, in answer to the question ‘does the threshold for an ‘armed attack’ within the meaning of Article 51 of the UN Charter leave a state unable to act vis-à-vis an opponent using hybrid warfare strategies?’. That if the individual means of a hybrid warfare strategy are utilises as part of a coherent strategy consistent with hybrid warfare. These activities are unlikely to qualify as a ‘use of force’ and thus, falls below the threshold for an ‘armed attack’ which is the legal provision for self-defence under Article 51 of the UN Charter. Consequently, a hybrid warfare strategy has the capability when deployed correctly to leave a State unable to act.
See Chapter 3 accumulation of events segment 109
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