Lawfare and the definition of aggression: what the Soviet Union and Russian Federation can teach us.

• Author: Bartman, Christi Scott
• Position: Symposium: Lawfare

One might ask why the Soviet Union so adamantly promoted a definition of aggression and aggressive war while, as many have noted, conducting military actions that appeared to violate the very definition they espoused in international treaties and conventions. Using treaties, the Soviet Union and Russian Federation practiced a program of lawfare long before the term became known. "Lawfare, " as used by the Soviet Union and Russian Federation, is the manipulation or exploitation of the international legal system to supplement military and political objectives legally, politically, and equally as important, through the use of propaganda. Lawfare was not the sole domain of the Soviet Union or the Russian Federation. What makes the Soviet Union and the Russian Federation stand out is their use of lawfare earlier and with a greater degree of consistent strategic implementation than others. They also continued to operate on a dual front, both legally in international bodies and through international law, and illegally or quasi-legally, when they manipulated the system to supplement their military agenda. With a consistent definition of aggression and aggressive war in place, a degree of predictability could be achieved in regard to future actions of other states and international bodies such as the United Nations. The Soviet Union proves the perfect case study to demonstrate the use of lawfare. The Council on Foreign Relations claimed lawfare was a "somewhat of a new phenomenon, the full effects of its application are yet unknown." (1) I argue that this is not a somewhat new phenomenon and has been practiced by the Soviet Union for decades. In order to preclude further actions, such as the ones demonstrated by the Soviet Union time and again, enforcement will be the key. Without solid enforcement mechanisms, this case study is only a demonstration of the weakness of the system. The lessons learned from the Soviet experience of the use of the definition of aggression as a form of lawfare should be considered by all as the discussions continue on the application and the execution of the definition. And, as for the concept of lawfare as applied through the use of the definition of aggression, one need only look to the Soviet Union to see the successful use of an old concept with a new name.

1. INTRODUCTION II. LAWFARE BACKGROUND A. The Soviet Era B. The Russian Federation Era I. INTRODUCTION

   On June 11, 2010, the Review Conference of the Rome Statute, which was held in Kampala, Uganda between May 31 and June 11, 2010, adopted, by consensus, amendments to the Rome Statute that defined the crime of aggression. Article 8, which contains the most relevant text, states:

   1. For the purpose of this Statute, "crime of aggression" means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

   2. For the purpose of paragraph 1, "act of aggression" means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

   1. 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;

   2. 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;

   3. The blockade of the ports or coasts of a State by the armed forces of another State;

   4. An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

   5. 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;

   6. 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;

   7. 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. (2)

   Most do not realize, however, that the Soviet Union was the standard bearer for this definition. The wording is almost a verbatim transcript of the July 3, 1933 Convention on the Definition of Aggression signed by the Soviet Union, Romania, Afghanistan, Estonia, Latvia, Persia, Poland, and Turkey. One might ask why the Soviet Union so adamantly promoted a definition of aggression and aggressive war while, as many have noted, conducting military actions that appeared to violate the very definition they espoused in international treaties and conventions. Using treaties, the Soviet Union and Russian Federation practiced a program of lawfare long before the term became known. "Lawfare," as used by the Soviet Union and Russian Federation, is the manipulation or exploitation of the international legal system to supplement military and political objectives legally, politically, and equally as important, through the use of propaganda.

   Lawfare was not the sole domain of the Soviet Union or the Russian Federation. What makes the Soviet Union and the Russian Federation stand out is their use of lawfare earlier and with a greater degree of consistent strategic implementation than others. They also continued to operate on a dual front, both legally in international bodies and through international law, and illegally or quasi-legally, when they manipulated the system to supplement their military agenda. With a consistent definition of aggression and aggressive war in place, a degree of predictability could be achieved in regard to future actions of other states and international bodies such as the United Nations.

   The strategic implementation of non-aggression treaties to set the stage for future military action by the Red Army or to restrict action from other armies was practiced repeatedly by the Soviet Union with states such as Finland, Latvia, Estonia, Poland, and others. Preconceived binding of other countries, such as those of the Warsaw Pact, enabled the Soviet Union to intervene militarily and at least auspiciously, claim it was in adherence to international law and treaty obligations. This demonstrated the dominion the Soviet Union had over the use of lawfare as a true supplement to military action. Scenarios such as the use of the definition of aggression and aggressive war by the jurists at Nuremberg and continuing propagation before international bodies such as the United Nations were not, taken by themselves, uses of lawfare. They were examples of strategic employment, within a legal context, to set the stage for their use later to supplement military strategy. No state was more consistent in this dual application than the Soviet Union, and later, the Russian Federation.

   The combination of lawfare with propaganda or media manipulation was also perfected by the Soviet Union as evidenced in both Korea and the Vietnam War. Since the definition includes manipulation of the international legal system for both political and military objectives, it is possible to utilize the international legal system for political purposes not associated with imminent or future deployment of troops.

   The Soviet Union proves the perfect case study to demonstrate the use of lawfare. The Council on Foreign Relations claimed lawfare was a "somewhat of a new phenomenon, the full effects of its application are yet unknown." (3) I argue that this is not a somewhat new phenomenon and has been practiced by the Soviet Union for decades, only under the auspices of aggression and crimes against peace rather than humanitarian law. To demonstrate, I begin with a short background on the term lawfare. This is followed by the primary focus of the article, the Soviet era. Ample evidence is presented that the concept, if not the terminology, was in use by the Soviet Union long before the term became known. Finally, a short update on the current use of the definition of aggression by the Russian Federation, its incorporation into Russian Criminal Law, and the new emphasis on humanitarian law is put forth. This article will demonstrate that without a solid enforcement mechanism, in this case for those that commit aggressive war, the use of lawfare is likely to continue despite the consensus definition.

2. LAWFARE BACKGROUND

   The first use of the term "lawfare" is attributed to John Carlson and Neville Yeomans in "Whither Goeth the Law--Humanity or Barbarity." While examining the demise and re-emergence of humanitarian law, they concluded, "[l]awfare replaces warfare and the duel is with words rather than swords." (4) The concept was recently picked up by the U.S. military as one of the greatest potential threats against the United States. (5) Colonel Charles J. Dunlap Jr. clarified the term as the use of law as a weapon of war. (6) Dunlap placed the argument in the context of the use of humanitarian law, or his preference, the law of armed conflict, against the United States. This angle has been pursued further by the Council on Foreign Relations, which defined "lawfare," and specifically its use as an asymmetrical weapon, as "a...