We need to think as hard as we fight

Canada, a founding partner of both NATO and NORAD, is facing an increasingly asymmetrical threat environment that has become more complex because of lawfare and hybrid warfare. This requires Canada to have interlinked policies of defence and security; foreign affairs; economic and international trade; and environment. All of these issues are interconnected and cannot be viewed in isolation by any of Canada’s military, political or policy leaders. 

Lawfare is an emerging concept defined by the use of the law as a weapon of war. Former USAF Deputy Judge Advocate General, Major-General Charles Dunlap described lawfare as an element of influence. In essence, actions are supported through official statements followed up by academic study and commentary to support, or control, a desired outcome that may eventually become accepted by the international community. 

The global commons, as defined by NATO, consists of 4 elements (oceans, airspace, space and cyberspace) that are critically important for global stability and economic trade. Some 90% of global trade is carried by sea. Any impediment to shipping clearly impacts the global economy. Canada depends on the movement of goods by sea for its commodity exports and must address these new threats. As a first step, we need to define the terms and how we work to counter these threats.

While the rise of non-state players has created more complexity, the increasing strength of both China and Russia is changing the dynamic of a unipolar world that has been dominated by the U.S. as a superpower since the end of the Cold War. In this new international environment, hybrid warfare has emerged, along with lawfare, as a new and complex threat. Canada and its Allies must identify, understand, plan and train for these new emerging threats. Easy to say, but difficult for Canada and its allies to put into practice. In order to prepare for this new threat, we need a comprehensive mechanism to think and discuss these issues in a real and sustained way. Hybrid warfare is becoming a pressing area of strategic thinking and planning that requires ongoing research and development. 

It’s complicated; it exists; and it continues to evolve. Although a common definition of hybrid warfare is elusive, it is widely understood to blend conventional and unconventional, regular and irregular, and information and cyber warfare. Russia’s recent intervention in Ukraine has generated much debate about the use and effectiveness of hybrid warfare. 
 

In a recent NATO Review article entitled Hybrid Warfare – Does it Even exist, Dr. Damien Van Puyveldeis considered the origins of the term: 

“The term ‘hybrid warfare’ appeared at least as early as 2005 and was subsequently used to describe the strategy used by the Hezbollah in the 2006 Lebanon War. Since then, the term ‘hybrid’ has dominated much of the discussion about modern and future warfare, to the point where it has been adopted by senior military leaders and promoted as a basis for modern military strategies.”

Hybrid threats are not restricted to conventional means; they exploit the “full-spectrum” of modern warfare. Dr Van Puyveldeis feels this adds to the confusion and increases its impact. “In practice, any threat can be hybrid as long as it is not limited to a single form and dimension of warfare. When any threat or use of force is defined as hybrid, the term loses its value and causes confusion instead of clarifying the “reality” of modern warfare.”

Recently, cyber attacks shut down the world’s largest marine container firm. Was this rogue hackers, or a strategic initiative by, or for, a foreign state? 

The shipping business has become increasingly dependent on cyber networks. The act of crippling shipping – by either cyber warfare or lawfare – has the same impact as a mine strike, missile attack, pirates, or a torpedo hit, in which ships are disabled and trade is affected. 

The complexity of the term ‘hybrid’ has grown since it was first used to include cyber attacks. NATO views hybrid as a new emerging strategic challenge. “Hybrid threats are those posed by adversaries, with the ability to simultaneously employ conventional and non-conventional means adaptively in pursuit of their objectives”. 

Leading naval thinker, retired Admiral James Stravridis, a former NATO Supreme Commander and now Dean of the Fletcher School of Law and Diplomacy of Tufts University in Boston, warns that, in the marine domain, hybrid warfare will undoubtedly embrace coastal waters. 

“Given its need to appear somewhat ambiguous to outside observers, maritime hybrid warfare generally will be conducted in the coastal waters of the littorals. Instead of using force directly from identifiable ‘gray hull’ navy platforms, hybrid warfare will feature the use of both civilian vessels (tramp steamers, large fishing vessels, light coastal tankers, small fast craft, and even ‘low slow’ skiffs with outboard engines). It also will be conducted and likely command-and-controlled from so-called ‘white hulls’ assigned to the coast guards of given nations.” 

As noted earlier, lawfare intends achieve a desired outcome using international law. In effect, the law becomes weaponized. Lawfare is a conscious act by an adversary, usually a nation state, with steps taken to achieve a desired result.

Professor James Kraska, Chair of U.S. Naval War College’s Stockton Center for the Study of International Law, recently wrote on the legal claims made by China in relation to establishing that rocks protruding from the sea are subject to sovereignty and EEZ zone status. “This falls into the trap laid by China, which has, at least since 1995, intentionally used confusion and ambiguity over its maritime claims in the South China Sea as a strategic weapon.”

Lawfare may not sound like such a big deal, but the results are powerful and can be as effective as the taking of land or sea territory by armed conflict and occupation. 

In a real world example, China has embraced this effectively for years. In the South China Sea, China has taken action with respect to uninhabitable islands (often described as piles of rocks protruding from the sea) by creating bases from the reclaimed seabed. China is now exerting a 12-mile territorial control around these bases, and interfering with the long-established right of innocent passage in the waters of the South China Sea. Those waters are also claimed by adjacent coastal states, Vietnam, the Philippines, Taiwan, Malaysia and Brunei, which all have competing ocean boundary claims. The impact is massive. These waters are critically important for global trade in Southeast Asia and are strategically important. 

We are seeing the same thing in the Arctic Ocean with respect to the resources that are found in the Arctic Ocean Basin in the area of the high seas known as the donut hole. These resources are to be harvested or used for the common heritage of mankind. No one state has a claim to them. This is set out in the High Seas provision of the Law of the Sea Convention, “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” under Article 136. 

The “common heritage of mankind” is a principle of international law which holds that defined territorial areas and elements of humanity’s common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation states or corporations.

China, however, takes a different view. China talks of a new shared future that is at odds with the stated provision of the Law of the Sea Convention. A recent post by Mia Bennett, unpacks the impact of China’s Arctic Policy: 

“China’s first move is to claim that ‘the Arctic situation now goes beyond its original inter-Arctic States or regional nature.’ The Arctic is no longer just a ‘region.’ It’s a situation, and situations demand responses. Furthermore, the Arctic has a vital bearing on ‘the survival, the development, and the shared future for mankind.’ Those are some pretty big stakes, but China is up to the task […] because China emphasizes that it is ‘a champion for the development of a community with a shared future for mankind.’ The globally-minded country (implicitly in contrast to the selfish ‘America First’) is ‘an active participant, builder and contributor in Arctic affairs who has spared no efforts to contribute its wisdom to the development of the Arctic region.’”

Bennett concludes that “though [China’s Arctic policy] aims at ensuring the ‘shared future mankind,’ a lot of benefits are going to trickle back towards Beijing as the ice melts away.”

China has consistently modified its statements on the common heritage of mankind with respect to the accepted definition, and seeks to change that to its advantage for both fishing and mineral resources in the rapidly-changing Arctic. Canada has not been very vigilant to this issue or that of passage rights in its internal waters of the Northwest Passage – and that must change. Lawfare cannot be dismissed as simply an academic international law issue. As freedom of navigation operations and overflights conflicts grow in the South China Sea, lawfare is a very real. It is an emerging threat, is being weaponized, and cannot be taken lightly.

Focus on Interconnectedness
So, what does this mean for Canada? Professor Van Puyveldeis advises against oversimplifying the threat. “So my recommendation is that NATO, and other Western decision-makers, should forget about everything “hybrid” and focus on the specificity and the interconnectedness of the threats they face. Warfare, whether it be ancient or modern, hybrid or not, is always complex and can hardly be subsumed into a single adjective. Any effective strategy should take this complex environment into account and find ways to navigate it without oversimplifying.”

As Canada marches into the 21st century Maritime century, and is looking to spend $60 billion on new vessels, we need to think carefully about the intertwining elements of warfare developing today. Our strategic thinking is as important as our military hardware. We need to clearly consider these threats in a sustained and integrated fashion that will involve the best thinkers in our country. 

In the past, Canada led the way with respect to NATO, and it makes sense that we continue to work to first identify and then develop strategies to deal with these issues in the NATO context. As can be seen in the South China Sea, no amount of military hardware will change the existing situation – and it is important to note that it could have been alleviated had more attention been paid to China’s actions (which were clearly identified in the early stages). The same applies to our Arctic; we need to carefully monitor China’s actions, especially in light of its expanded Silk Road initiative. 

Canada needs this as much as it needs new surface combatants. We need to think as hard as we may have to fight. 

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Joe Spears is the managing director of Horseshoe Bay Marine Group and a lecturer of maritime law at Memorial University of Newfoundland’s Marine Institute. He has examined international law, Law of the Sea, and Arctic law at the London School of Economics. He worked with the late Professor Ian Townsend-Gault, at the University of British Columbia’s Asian Legal Studies Program on the South China Sea, and was part of the CIDA team that looked at developing the Maritime Code for Vietnam in 1994. Joe can be reached at joe.hbmg2@gmail.com