I spent a day and half this week at the Pentagon at a remarkable symposium on so-called "hybrid conflicts" organized by the office of the legal adviser to the Joint Chiefs of Staff. The conference took place under Chatham House rules, so I'm constrained in describing the proceedings in any detail, but as it will be of particular interest to Lawfare readers, I will do the best I can. (In addition, I recorded an episode of the Lawfare Podcast yesterday with the joint staff's legal adviser, Brigadier General Richard Gross on both the subject of hybrid conflict and the symposium. I will post that next week.)
The impetus for the conference, as General Gross explains in the podcast, is that the Pentagon's senior leadership has increasingly begun discussing conflicts in terms of this idea of "hybrid conflict"—which is to say conflicts that involve both elements of state-to-state conflict and non-state actors. Pentagon lawyers were looking for input into and discussion on how this idea maps onto existing legal structures. The laws of war, after all, don't have a "hybrid" category. There's international armed conflict (IAC) and non-international armed conflict (NIAC).
The trouble is that officers don't tend to think in those terms. As one participant in the conference quipped, he'd heard military non-lawyers use the term NIAC frequently, but only ever in asking a lawyer the question, "What is a NIAC?" Military planners think in the language of counter-insurgency, in the language of civil war, in the language of state-to-state conflict, and increasingly, they think in the language of this idea of hybrid conflict.
So, the symposium asked, what should lawyers do with this idea? Is it really new? And does the law need to adjust somehow to deal with it?
To discuss these issues, the joint staff brought together a remarkable collection of high-level government officials (four agency general counsels, for example), civilian and military lawyers from around the government, several prominent academics, and legal representatives of a number of allied governments. It was an unusually interesting discussion with an unusually interesting group.
My own sense, as I suggested in my brief remarks at the event, is that most of what's being described under the rubric of hybrid conflict isn't really new and doesn't pose serious challenges to the law, certainly not to the basic frameworks associated with International Humanitarian Law (IHL). But there are a few areas, mostly related to the cyber domain, that are new and do pose more fundamental challenges. I don't think that these challenges are primarily challenges to IHL, however. They are, rather, challenges in other areas of international law and, more pointedly, in domestic law.
Allow me to explain:
As I listened to the presenters at the symposium, I noticed a number of different threads embedded within the phrase "hybrid conflict," some more novel than others. Some people used the term to describe mixed conflicts that involve both state and non-state actors. For example, Yemen and Syria both currently involve substate actors, but they also involve foreign governments intervening. There is nothing new about this sort of mess at all. Countries have intervened in fractured states for a long time, creating muddles of parties fighting one another (think of the breakup of Yugoslavia, to cite only one example). And sometimes, the application of IHL to these situations can be complicated. But the problem seems neither novel nor a particularly challenge to the IHL framework.
Other speakers cited as examples of hybrid conflict China's use of civilian fishing boats, backed up by naval forces, to assert sovereign claims in the South China Sea or Russia's use of local civilians—in combination with its own disguised troops—to take Ukrainian territory. Again, this seems to me relatively old hat, at least conceptually. Those who remember the way the United States settled the West or took Florida or Hawaii will not find anything too unusual about the use of civilians to stake out claims and the subsequent use of military might to defend those claims and incorporate territory. More recently, think of the way Germany used ethnic Germans in the Sudetenland to take that territory from Czechoslovakia in 1938 or the way Russia has behaved towards both Georgia and Moldova. This sort of thing just isn't new.
Still other speakers talked about non-state groups, ISIS most prominently, that claim statehood or that control territory in a statelike fashion. Hamas in Gaza, to some degree, also fits this description. Yet again, I'm not sure this poses any particular challenge to IHL in its fundamentals. One has to decide, of course, whether to recognize a claim of statehood, and which type of conflict law governs a situation will follow that judgment. But IHL has no basic problem with the question of what obligations bind ISIS to if it is, in fact, a real state. Nor are its obligations ambiguous to the extent it is merely a non-state militia.
Finally, one presenter gave a particularly interesting talk about what we might call "layered" conflicts. This speaker talked about how many distinct conflicts were currently taking place in Syria: he counted six but agreed with a questioner that there may be at least two more. One might make a similar argument about Yemen. The talk was, as I say, fascinating, but again, I can think of lots of situations in which conflicts have layered on top of one another. Think only, for example, about how many subsidiary conflicts took place during World War II. Or more recently, think of the Shi'a-Sunni conflict that took place in Iraq during the insurgency while the country had US forces in it, US forces who had come as part of a state-to-state conflict with the then-Iraqi government, whose remnants then became parts of the insurgency. And think in that context of Iran's role providing granular support to Shi'a militias in conflict both with Sunni forces and US forces.
So what is really new in this idea of hybrid conflict? As far as I can tell, the answer is all about cyber.
One presenter noted the following operational scenario: Operators detect incoming malicious network traffic; they identify civilians behind it; but they have no idea if those civilians are working with or for a government. One might add that they also may not know whether this malicious traffic rises to the level of any kind of attack, let alone an armed attack for purposes of IHL, or whether it is merely espionage. If the latter, it is not prohibited under international law at all.
This opacity of operating environment seems to me genuinely new, particularly when you factor in the sheer volume of such activity and the fact that these situations require responses in network time. One participant described this combination of volume and opacity as so large and so opaque that it induces a paralysis in the response: Officials don't know what incoming traffic is, so they don't know what law to apply, so they don't apply any law and do nothing. The result, he said, was a kind of "lawlessness."
It's a terrifying statement, but it's not a deficiency in the laws of war. In fact, what struck me at the conference was that nearly everything that seemed novel here was really less about IHL than about the regulation of new technologies, both under international law and under domestic law. ISIS, after all, is not the first militia group in the world to try to recruit a lot of foreign fighters. Remember when Republican Spain attracted anti-fascists from all over, including the famous Abraham Lincoln Brigades from the United States?
The difference between then and now is really ISIS's contemporary ability through Twitter to reach into other countries and recruit followers, and using encrypted chat systems, then to communicate securely with those recruits. This difference does not reflect problems with the application of IHL to hybrid conflicts. It is, rather, the problem that Jim Comey and Apple are fighting about.
Similarly, the problem of opacity in real time—which is, indeed, a very big problem—doesn't strike me as a problem in IHL either so much as an informational problem and perhaps a problem of authorization to act in the face of doubt as to what law applies.
I left the conference wanting to have another one on "Law and Security in Network Time."