As the UK’s HMS Defender sailed some 12 miles (19 kilometres) off Crimea’s coast last July, misinformation and competing accounts of the incident quickly clouded the legal assessment of the situation. Competing legal arguments fed into Russia’s and the United Kingdom’s political narratives, and appeals to the law became heavily politicized.
The HMS Defender incident is an example of real-time hybrid legal threats, where a hostile actor employs law and legal arguments in its tactics as part of an information operation. It illustrates how not all legal vulnerabilities are known in advance, and how this results in an urgent need for legal preparedness and capacity-building, argues Dr Aurel Sari in the new Hybrid CoE Research Report, Hybrid threats and the law: Building legal resilience.
“For actors such as Russia and China, law is a core component of their grand strategy,” Dr Sari writes. “They employ law both to exert control and project influence and to legitimize their acts and delegitimize their opponents.”
Building legal preparedness starts by drawing up a clear picture of the way in which adversaries are known to utilize the law to their advantage. Commonly employed tactics, such as hostile information operations, election interference, building energy and economic dependence to be used later, and cyber operations, all have legal aspects that hostile actors may exploit. The activities and the legal aspects should be categorized into a legal threat matrix and prioritized in the form of a legal threat register.
“The legal threat register should be kept under continuous review in the light of the evolution of the hybrid threat landscape. The register should also identify the legal vulnerabilities that the threats exploit or give rise to,” Dr Sari writes.
In this Hybrid CoE Research Report, Dr Sari shows how navigating the legal threat landscape demands a strategic approach which recognizes the systematic nature of the threat. According to Dr Sari, there are seven steps that the EU, NATO and their member states should take to build this strategic approach.
To lead the discussion on hybrid threats and the law, and to mark the publication of the report, Hybrid CoE is organizing its flagship conference Outside and inside the law: Countering hybrid threats in the legal domain in Helsinki on 4 November. The conference brings together experts, policymakers, practitioners, lawmakers and academics to discuss and enhance legal resilience in and across our societies. Hybrid CoE continues to provide solutions and to share best practices in countering hybrid threats posed by gaps in national legislation and international law.
“The work needs to be done at multiple levels: in the national legislative processes, at the EU level, as well as in the context of international law. A special focus should be on governmental efforts to address hybrid threat attempts below the threshold of open aggression,” says Teija Tiilikainen, Director of Hybrid CoE.