A warfighter’s perspective on “lawfare” in an era of hybrid threats and strategic competition

Today’s post is an extremely important one as it gives us the often hard-to-get warfighter’s perspective on the much-discussed topic of ‘“lawfare” and legal operations.   Air Force Maj. Gen. Barre R. Seguin is the perfect person to speak on this topic as he is not only a decorated fighter pilot, he served as the Commander of the 9th Air and Space Expeditionary Task Force-Afghanistan and simultaneously as the Commander, NATO Air Command-Afghanistan from May 2028 to June 2019.

I heard his presentation when he was the keynote speaker at the Foundation for Defense of Democracies’ “Waging and Defending Against Lawfare Symposium” last January in Washington, DC.  I knew his thoughts would be valued by Lawfire^®,readers, so I’m thrilled he agreed to share his notes.

(I’ve added a few hyperlinks below to help some readers with definitions, etc.; additionally, the photos are my ‘adds’)

THE USE OF LEGAL OPERATIONS IN A CONTEXT OF HYBRID THREATS AND STRATEGIC COMPETITION

(as delivered)

by:

Major General Barre R. Seguin
Deputy Chief of Staff, Strategic Employment
Supreme Headquarters Allied Powers Europe

Thanks, Andres. It’s a great pleasure to be with you to be here with you today! Being a room full of lawyers, you probably don’t hear that too often. Ah, so many lawyer jokes to choose from…a TARGET RICH ENVIRONMENT, for those of you familiar with the movie Top Gun. In fact, some of my closest friends are lawyers, and I’ve them all over the years.

I was having a drink with one such friend and I told him about this upcoming engagement and asked him if he had any lawfare/law operations of his own. He said, “well, there is one . . .”

As my friend tells it, this was his first big case and he was very nervous. Always the overachiever, he wanted to make a good impression on the Senior Partners in his law firm. His job was to defend a local businessman in a lawsuit and more than a million dollars were on the line. His client freely admitted to him that he was guilty and the prosecution had an overwhelming amount of evidence against him. Afraid of losing, my friend spent several weeks in intense preparation. He started the trial – confident he could defend his client from significant liability.  

After a few days in court, however, he seriously started to fear that he was losing the case and even asked his Senior Partner if he should send a box of cigars to the judge to curry his favor. The senior partner was horrified and scolded him for making such a statement. “The judge is an honorable man,” the Senior Partner told him, “If you do that, I guarantee you’ll lose the case!” Eventually, the judge ruled in my friends favor and threw out the case. “Aren’t you glad you didn’t send those cigars?” the Senior Partner asked him a few days later. “Oh, I did send them,” my friend replied. “I just enclosed my opponent’s business card with them.” Lawfare? Legal operations?

The concept of using deceptive tactics outside of the courtroom to achieve an effect inside of the courtroom parallels law operations within a military context.  As a former commander of forces engaged in combat in Afghanistan, I have had the opportunity to witness similar instances where legal operations, deceptive in the case of the enemy, employed off of the battlefield had operational impacts on forces engaged in combat. A recent example includes law operations contributing to the 1^st ever cease fire in the 18 year Afghan War, when I was there in 2018.

Hybrid Threats and Strategic Competition

My keynote address today is titled: The use of Legal Operations in a context of Hybrid Threats and Strategic Competition. The traditional border between peace and war has become ambiguous and blurred. Changes in society, political structures and technology have opened opportunities for Strategic Competition – well below the threshold of armed conflict. At SHAPE we use the term ‘legal operations’ to describe the use of the legal domain to achieve objectives at the tactical, operational or strategic/political levels.

In the context of Strategic Competition — asymmetric / non-conventional warfare techniques and the legal domain are often exploited together with other non-kinetic instruments – specifically strategic communications and information operations – in order to achieve an effect for the Alliance. This exploitation can occur both during peacetime, or strategic competition, and during periods of crisis and conflict.

NATO

Legal operations create challenges which are felt across all of NATO’s core tasks. Since 2015, NATO’s response to hybrid threats has focused on improving Alliance situational awareness through intelligence and information sharing, resulting in improved Indicators and Warnings (I&W), strengthening our deterrence and defense posture, and enhancing our crisis response procedures to guide decision making in crisis. Gaining timely consensus on what to eat for dinner (the vexing chicken or beef decision) – in an Alliance of 29 Nations can be contentious – sometimes we don’t make the dinner decision until well after breakfast the next day, giving our would be adversaries advantage based upon their much tighter decision making cycle. 

NATO is a consensus-based organization – it is essential that we take the time to develop solid response procedures – now — when we are not in a time of crisis to reduce decision timeliness from competition to crisis to conflict.

NATO supports the comprehensive strengthening of Allied resilience to protect our societies and to deter hybrid attacks by denying their success.  These “prepatory” actions, undertaken by our adversaries, seek to exploit vulnerabilities, disrupt NATO’s ability to take timely decisions, and weaken the Alliance’s resilience and ability to withstand or counter a conventional attack. On their own — individual action may not be illegal or pose a threat, but when combined with other actions could threaten the strength of the Alliance and, therefore, our critical vulnerability — cohesion.

What is new about hybrid strategies

I do not want to give the impression that the use of hybrid strategies in conflict is new, but what is new for NATO is the coherent way that our Strategic Competitors are now combining a wide range of political, civil and military instruments. We have seen where they have aimed at specific vulnerabilities in targeted nations and international organizations in order to achieve strategic objectives.

Furthermore, use of hybrid strategies have the aim of complicating, delaying and impeding timely decision making and undermining the ability of an Ally or the Alliance as a whole to swiftly and effectively respond to threats.

The use of legal operations allows our potential adversaries to have a significant impact – while avoiding the use of kinetic means – and remaining under the use of armed force threshold. Several States and non-State actors are increasingly using the legal domain in order to achieve their strategic objectives and interests – effectively by tampering with the rules-based international order (RBIO) – and destabilizing international relations.

Russia’s Arctic activities and more

Russia’s activities in the Arctic provide several good examples of manipulating the Rules Based International Order.

For example:

• • In August of 2015: Russia made an appeal to the UN for the recognition of a large portion of the Arctic Sea (approximately 460,000 square miles) – including the North Pole – as part of Russia’s Exclusive Economic Zone. This claim is in direct conflict with claims from other countries laying claim to or with interest in the Arctic.
  • Recently, Russian forces stopped and boarded a cargo ship transiting the Northern Sea Route –designed to demonstrate Russia’s control of this route, flexing muscle, and testing the Rules Based International Order.
    

In fact, the other day I read a story about Vladimir Putin visiting a former Soviet Bloc Country. At the airport, he was stopped by a border control agent and was required to fill out an entry form. The border guard asked him a series of questions related to his visit. At one point during the exchange the border guard asked him . . . “occupation?” “Not today,” Putin replied without missing a beat. “Just tourism.” 

Lawfare at the tactical level: human shields

In the Western world – we are historically and culturally inclined to see Russia as the principal manipulator of Legal Operations. However, the use of legal tools to achieve objectives is not just limited to Russia and are manifested down to the tactical level via real time decision making on the battlefield.

We see this as the rise of asymmetric and urban warfare has led to increases in fighting among the civilian population. At the same time, modern conflicts have witnessed the emergence of the use of human shields. This particular tactic consists of placing civilians and other protected persons next to, inside, or working at legitimate military targets to prevent attacks.  I saw this play out in multiple scenarios during my recent Afghanistan Command Tour. Taliban or ISIS retreating or ducking into homes with an unknown number of civilians therein…and continuing to engage friendly forces using the home and civilians as a shield.  Mosques being illegally used as weapons caches and Taliban C2 nodes.

During our air campaign, which primarily targeted opium production facilities at the point at which refinement resulted in the greatest increase in product value, we were unable to discern, often, from persistent overhead ISR, if those involved in the production were Taliban or just Afghans involved in criminal activity. We did know, however, 20% or greater of the profit down-stream was going to the Taliban to support their fight against the coalition. Without discernment, we had to ensure a 0/0/0 slant, as we called it, meaning no men, no women, on children present before we could kinetically strike the production facility. 

Techniques to avoid civilian casualties

We learned to do so in creative ways, to include off-set bombs, A-10 or F-16 strafing passes adjacent to the facility, or a string of flares to frighten those working at the facility to depart.  Most of the time this resulted in those in/around the facility scattering like ants, but eventually we saw more coercing of individuals to continue production and ignore the “warning shots” as the Taliban become more aware of our tactics and, therefore, leaned more heavily on their tactics – the human shield.

Besides obstructing mission accomplishment, using human shields put civilians at great risk.  While some civilians might voluntarily participate in shielding military objectives, many civilians, particularly when dealing with the Taliban, are coerced to do so OR, as was often the case with opium production, may not even be aware that military assets are placed in their proximity or that their location/activity is likely to be targeted. As we know from UNMA reporting, the higher the likelihood of civilian death or injury, the more effective the human shield deters attacks and, with civilian losses, the more effective the adversaries’ strategic communication is at blaming coalition actions, rightly or wrongly, as unethical and illegal hostilities.

Legal operations and “legal preparation of the battlefield”

Considering these examples – I think that it is appropriate to further Define Legal Operations as any actions in the legal domain by state or non-state actors aimed at advancing strategic interests, or enhancing capabilities at the tactical, operational, strategic and/or geopolitical levels. They may be used across the whole peace-competition-crisis-conflict spectrum – executed through a wide range of tools, not all of which are of a legal nature. They could consist of “legal preparation of the battlefield” – as in the Russian EEZ claim on the Arctic example that I gave earlier – or legal operations as a path to war (shaping operations in advance of war – providing legal cover for kinetic operations). Legal operations may also be used to minimize the consequences or delaying retaliation for an operation that has already occurred.

Legal operations are different from Lawfare – a term that will be familiar to you all. Lawfare is commonly defined as “the strategy of using or misusing law as a substitute for traditional military means to achieve a warfighting objective.” Although the concept of Lawfare includes some of the actions that we have used to describe Legal Operations, it is less comprehensive and more limited in scope.

Legal vigilance

As a result of NATO’s commitment to counter hybrid threats, we recognize the need to identify, assess and respond to hostile legal operations through a uniformed methodology while at all times embracing the rule of law and stressing the importance of a stable international legal framework. Moreover, legal vigilance and awareness are essential to detect this type of actions in early stages, legal vulnerabilities in the legal order where NATO and Allies develop their activities, as well as contributing to our understanding of the information environment.

As I mentioned previously, changes in society, political structures and technology have opened opportunities for Strategic Competition, well below the threshold of armed conflict.  Legal operations, executed by our competitors, has forced us to evolve our understanding of the threat environment and has caused us to employ new tools to counter their actions. We must remain vigilant and ready to evolve to address new and unforeseen threats emerging in the legal domain.

Which brings us to the last bit of humor…

One night, after a particularly trying day in Moscow, Vladimir Putin crawled into bed and fell immediately to sleep. During the middle of the night – Stalin appeared to Putin in his dreams. In the dream, Stalin said to Putin, “I have two bits of advice for you. First, you should immediately put all of your political opponents in jail and then publicly denounce them as traitors of the state. Second, you should paint the Kremlin blue.” Without hesitating Putin asks, “Why blue?” Stalin responded, because I knew that you wouldn’t object to the first one!

Incorporating lawyer and the legal domain into planning

In closing, realizing our strategic competitors don’t hold themselves accountable to our own high rule of law standards is the starting point in understanding the threat in the legal domain. So we must continue to explore and understand how the enemy fights in the legal arena to create a strategic effect against the Alliance. Additionally, the legal domain must be fully incorporated into our plans, I+W, and operations to achieve more holistically the desired effects.

And finally, while I told a few lawyer jokes today and while it is a little intimidating being in a room full of lawyers, as I certainly did not have the intellectual capacity to go to law school myself, I want to end by positively expressing my gratitude for the superior lawyers that I have had at my side during each of my times in command. These trusted experts became my friends and sounding boards on just about every major decision I had to make and, most importantly, decisions which involved taking lives in combat.

I’ve been told, as you age there are three things you need: first, a good estate/financial planner; second, a good lawyer; and third, for men, especially, a good urologist. So far, with my many trusted and valued lawyer friends, which I have been blessed to have over the years, one out of three ain’t bad! Thank you for having me today.

Given his combat experience, Maj. Gen. Seguin’s observations are absolutely invaluable.  In connection with this post, you may also want to listen to Aurel Sari’s podcast on “Grey Zone War” and take a look at Andrés Munoz Mosquera’s and Nikoleta Chalanouli’s essay: “China, an active practitioner of legal warfare” (which was presented at this same conference).  Want to know more about the human shield conundrum? Check out the post here.

The views and opinions in this article are those of the author and do not necessarily reflect those of NATO, the U.S. Department of Defense, or any component of the U.S. government.  Guest posts also do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Still, as we like to say on Lawfire^®, gather the facts, examine the law, evaluate the arguments – and then decide for yourself!