It is argued that Russia’s contemporary foreign policy and actions following its loss of territory after the breakup of the Soviet Union have led it to attempt to regain its influence using a variety of methods. In particular, it is contended that increasingly Russia is using ‘hybrid warfare’ tools to this end while at the same time exploring the limits of international law through lawfare which is defined as the use and exploration of the limits of the law to the letter but not necessarily the spirit to achieve desired outcomes. It is against this conceptual framework familiar to war studies specialists that Dr Noëlle Quénivet presented a paper, jointly written with Dr Sabine Hassler, entitled ‘Nationality as a Tool of Hybrid Warfare – Limits under International Law’ at the Workshop on ‘Russia and International Law – Politics and Discourse’ organised by the British International Studies Association on 17 September 2018. The workshop, held at the War Studies Department at King’s College London, brought together a group of young and well-seasoned scholars in international law and international relations to discuss Russia’s current stance in international law.
After a keynote address by Prof Bill Bowring of the University of Birbeck the first panel focused on Russia, Law and ‘Hybrid Warfare’ in which Dr Hassler and Dr Quénivet’s paper was delivered. It is contended that to achieve its foreign policy objectives, Russia has developed an arsenal of tools such as information operations, cyberattacks, proxies, etc. while maintaining that it complies with international law, at least with the established legal framework. One set of arguments claims that Russia is not trying to create new law but rather explores the scope and interpretational variations of the existing framework to achieve its objectives. Another set of arguments focuses on lawfare in the sense that Russia has employed law and legal processes to further its aims by exploiting legal thresholds and grey areas, thereby instrumentalising international law: it is using, abusing and misusing the law.
Using the example of the concept of nationality under international law Dr Hassler and Dr Quénivet show how Russia has instrumentalised the identification of nationals and the subsequent conferral of nationality to create facts and context that seemingly justify Russia offering its discretionary right to offer diplomatic protection to its nationals abroad and ‘intervening’ in Georgia and Ukraine. The paper maintains that the conferral of nationality (coined ‘passportisation’) is part of an integrated lawfare strategy that has so far evolved in five phases. This long-haul policy consists in creating facts as a basis for legal claims and then applying the law onto the facts with a view to modifying the law and thus establishing new, albeit sometimes unrelated to nationality, international law norms. Whilst it might be viewed as an exercise in international law interpretation, the fact that there seems to be a discernible pattern and that the situations created as a result of this policy are often unlawful means that first the law appears to be deliberately misused or abused and thus indeed is an instrument of warfare, and second one needs to carefully examine the practice and the opinio juris of Russia to predict possible changes in customary international law.