„LAWFARE“

Law as a weapon in hybrid conflicts

Lukas Bachmann

The way how conflicts are dealt with in the east of Europe and the Levant shows that modern, national as well as non-governmental enforcement of intentions have changed. At this, the military plays a not less important, but in the course of escalation subordinated role. The enforcement of own interests in hybrid conflicts” happens multi-dimensionally. In the Conflict Picture 2030 of the Austrian Armed Forces one can find the following definition of „hybrid conflicts“:

„… is a kind of dealing with conflicts for attaining strategic interests, whereat the aggressor deploys several or even all of his instruments of power he has at disposal as a state or an actor similar to a state. These different instruments are aligned with each other in the long term, and are partly deployed in an obscured way, and an open armed conflict is avoided. At the same time the aggressor can use the threats and crises, which the affected state or actor similar to a state subjected to, for achieving his objectives, or can even provoke them.
Explanation: This kind of dealing with a conflict distinguishes from an armed conflict/war insofar as the open showdown between regular armed forces as a means of dealing with conflicts does not occur in the hybrid one. In the showdown, it is the intention of the aggressor not to fulfil the facts of the armed conflict (war).”

For this reason it is to be accepted that „hybrid threats” do exist. Various publications deal with this subject matter and, by means of different models of explanation, try to present possibilities for solution in order to confront such threats. This is happening both nationally and internationally. In the framework of the EU, concrete guidelines for the member nations are given. In the Austrian Security Strategy, too, representing the overall national approach of conflict preparation, the new objective facts are dealt with. Here, especially the changed environmental conditions, the increased risks, and the short forecast lead times are emphasised. These challenges, which can manifest both in the interior and from outside, are intensified by increasing international interconnectedness.

Essential for the performance of „Lawfare“ (in the sense of law as a weapon in hybrid conflicts) are the national moment of frailty as well as detailed knowledge of the relevant legal system. This can take place both from the interior (corruption, organised crime, etc.), and can be intensified as from outside (e.g. by supranational legal constructs such as EU or UNO) as well. Lawfare” can be both positive and negative, and in some cases can enhance the factor moment of frailty.

The most serious threat which can be evoked by „Lawfare” in the near future will be an attack of national cohesion. This is especially the possibility of external actors, with the help of already trained specialists within the legal system of Austria, to act adequately and thus to deeply damage social cohesion. In the long run, the challenge will be to prevent exertion of influence by supranational organisations on the own legislative in such a way that no disadvantageous developments are possible. Another challenge will be to prevent that non-governmental elements (like international groups of undertakings, NGOs, terrorist groups) can unopposed and with negative intentions participate in the legal system and/or take advantage of it.