Hybrid Warfare, Law and the Fulda Gap
Complex Battle Spaces (Michael Schmitt, Christopher Ford, Shane Reeves & Winston Williams eds., Oxford University Press, 2017 Forthcoming).
36 Pages Posted: 9 Mar 2017 Last revised: 10 Mar 2017
Date Written: March 5, 2017
The purpose of this paper is to explore the legal dynamics of hybrid warfare. My central argument is that law constitutes an integral and critical element of hybrid warfare. Law conditions how we conceive of and conduct war. By drawing a line between war and peace and between permissible and impermissible uses of force, the legal framework governing warfare stabilizes mutual expectations among the warring parties as to their future behavior on the battlefield. Hybrid adversaries exploit this stabilizing function of the law in order to gain a military advantage over their opponents. The overall aim of hybrid adversaries is to create and maintain an asymmetrical legal environment that favors their own operations and disadvantages those of their opponents. This poses two principal challenges, one specific and one systemic in nature. Law is a domain of warfare. Nations facing hybrid threats should therefore prepare to contest this domain and strengthen their national and collective means to do so. This requires a clear understanding of the legal dynamics of hybrid threats, awareness of legal vulnerabilities and taking steps to strengthen legal preparedness, deterrence and defense. At the same time, the instrumentalization of law poses profound challenges to the post-Second World War international legal order. Nations committed to that order cannot afford to respond to hybrid threats by adopting the same means and methods as their hybrid adversaries without contributing to its decay.
Keywords: hybrid warfare, hybrid threats, international law, lawfare, war, peace, law of armed conflict, use of force, Crimea
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