Dimensions of Russian Aggression and the International Legal Order

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| Feb 24, 2023

Aggression

Russia’s war against Ukraine has many dimensions: conventional, economic, cyber, informational, and cultural. Recent research, prepared by the Economic Security Council of Ukraine in cooperation with the State Service of Special Communication and Information Protection of Ukraine, demonstrates that these dimensions are interconnected. Furthermore, Russian hybrid aggression continues not only against Ukraine; malicious operations are carried out against all countries that Russia regards as unfriendly. These acts are global threats. To effectively respond and guarantee peace and security, modern understandings of aggression under international law should be updated.

Can some cyber operations be acts of aggression? Can hybrid attacks activate the right to collective self-defense? Can States be held accountable for informational aggression? These are the questions, the answers to which must shape the future of international law.

Correlations

Russia’s cyber, psychological, economic, and other malicious operations are fully coordinated with its general military strategy and conventional attacks. Russian organs have a wide range of targets, but their priorities include: State institutions (to degrade decision-making centers responsible for maintaining stability), civil and energy infrastructure (to increase civilian suffering), and media and communications (to reinforce Russian propaganda).

There are both subject-matter and temporal correlations to these operations. Correlations by subject are often geographically correlated (when different attacks occur against the same object or against the same territorial unit) or correlated by sector (when different attacks occur against a specific activity, such as energy or banks). Temporal correlations can be classified as preparatory attacks (to precede conventional attacks), synchronous attacks (to increase the negative consequences of conventional attacks), and retaliatory attacks (as revenge for Ukrainian success or to deter international support to Ukraine).

Fully correlated by subject and timing, Russia’s aggressions against Ukraine have no analogs in recent European history. And worse, the war indicates approaches to future armed conflicts. This confrontation between democracy and authoritarianism is gaining momentum and will be decisive in shaping the global agenda in the coming decades. It is clear that authoritarian regimes will continue to exploit strategic blind spots and legal gaps through multidimensional aggression. But aggressive authoritarian regimes share the weaknesses of centralization and predictability. Democratic defense doctrines must counter these authoritarian adversaries. All strategic thought and policies, as well as the international legal norms that support them, must be based on modern warfare’s multidimensionality.

A Multidimensional Understanding of Aggression

In 1974, the United Nations General Assembly adopted a widely accepted legal definition of aggression in its Resolution 3314. The Rome Statute of the International Criminal Court employs similar wording. Although Resolution 3314 provides that aggression is “the use of any weapon by a State against the territory of another State,” there is currently no clear answer to whether “any weapon” includes economic, informational, and cyber weapons. The Russian Federation and other authoritarian States exploit this ambiguity to harmful effect.

Meanwhile, similar ambiguity attaches to hybrid or gray-zone operations and the right of States to self-defense. It is obvious that aggression in the 21st century is not only conventional. International legal approaches to aggression must adapt to authoritarian exploitation of apparent legal gaps. For example, NATO Secretary General Jens Stoltenberg has recently reaffirmed that “hybrid and cyber attacks can trigger Article 5; [they] can constitute an armed attack against a NATO ally.”

Responsibility for such acts should extend to all manifestations of aggression, not just obvious or conventional cases. It seems there is no jus cogens norm that the Russian Federation would not violate in its aggression against Ukraine. Russia’s attempts to destroy the Ukrainian energy system have demonstrated the multidimensional aspects of modern aggression. Marc Goodman in his book “Future Crimes” rightly warns that hacking any of the critical infrastructural systems could have catastrophic consequences: for example, targeting the electrical grid would leave a city, region or country in complete chaos. Railways, gas pipelines, drinking water, hospitals, and sanitation systems are other possible targets.

As in the past, accountability mechanisms such as international tribunals offer a promising path toward a refined and effective legal conception of prohibited aggression. Accordingly, the Ukrainian government and civil society are advocating a Special Tribunal for Aggression against Ukraine. It is important to bring Russian leadership to responsibility for all its actions, not only conventional war. Although some experts and representatives of foreign countries remain quite skeptical, support for this initiative is growing. In order to increase support for creation of a Special Tribunal, it is also possible to expand jurisdiction by modernizing the understanding of aggression.

Responsibility for aggression should be as multidimensional as modern aggression itself. In accordance with the Articles on the Responsibility of States for Internationally Wrongful Acts, no law-abiding State may recognize or support a situation that has arisen as a result of a serious violation of international law. States that support or continue to cooperate with Russian industry surely risk being deemed complicit in its aggression. Moreover, under Article 25 of the Rome Statute individuals may be criminally responsible and liable to punishment if they act with the purpose of facilitating the commission of crimes and provide the means for its commission. According to monitoring by the Economic Security Council of Ukraine, international business interests have deliberately aided the Russian economy and military industry, thus facilitating its war crimes and aggression.

The multidimensionality of Russian aggression proves the need for sanctions against the most critical sectors of the Russian economy. Sanctions should be strengthened, and corporations must abandon the Russian market. Today, complicity in aggression involves not only direct support to hostilities such as the sale of drones but also providing access to off-the-shelf technologies that make modern warfare possible. Because so many dimensions of Russian aggression (like cyber operations) have no geographical restrictions, Western companies that continue to supply Russia with the technology not only contribute to the continuation of aggression against Ukraine. They undermine the security of the broader world order.

Conclusions

On the one hand, the nature of war changes little, if at all, over time. Despite general civilizational progress, war remains a violent effort to impose one’s will on an adversary. Theoretically, international law, in both its ad bellum and in bello incarnations, has done much to regulate and to humanize war. But as long as totalitarian regimes survive, it seems that not even the most civilized or refined rules will deter or alter their atrocious practices in war. The Russian Federation has clearly proved that there are no limits to its military brutality.

On the other hand, modern technologies are changing everything, including war. The more automated warfighting processes become, the more interconnected our societies, the more vulnerable our systems are. Our technological innovations are as much a source of danger as they are a sign of human progress. Multidimensional aggression by authoritarian regimes, that exploits this technological interconnection, certainly reflects a change in the character, if not the nature, of warfare.

Alongside legal doctrinal refinements the international community must draw broader national security conclusions from Russia’s full-scale and multidimensional aggression against Ukraine. The inexorable correlations between Russia’s conventional, kinetic operations and the malicious technological, psychological, and economic operations that support, and in some cases precede, its invasion of Ukraine must be appreciated and accounted for in legal doctrine and security planning. Humanity needs a new global security architecture that takes into account the impact of modern technologies and is proactive against possible future threats.

Democracy can win; but in order to win, democracy and its supporting legal architecture must be well-armed. Well-armed not only against conventional attacks, but also against cyber, informational, and economic attacks. New international legal approaches will be a reliable shield against modern hybrid threats.

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Ilona Khmeleva is a Jacyk Non-Residential Fellow at the University of Toronto and an Expert at the Economic Security Council of Ukraine.

 

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