Докторська школа імені родини Юхименків

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Browsing Докторська школа імені родини Юхименків by Author "Fisher, Brad"

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    Malign Legal Operations (MALOPs) in International Law in the Context of Russia’s Invasion of Ukraine: Dissertation to obtain the scientific degree of Doctor of Philosophy
    (2023-12-27) Fisher, Brad; Petrov, Roman
    Dissertation to obtain the scientific degree of Doctor of Philosophy in the Field "29 Iinternational relations", specialty 293 "International Law". – National University of Kyiv – Mohyla Academy, Kyiv, 2023. This research offers the theory of Malign Legal Operations (MALOPs) as a complex and multifaceted challenge in contemporary international conflicts that both manipulates and threatens Public International Law (PIL). The need for a comprehensive framework to understand the intricate and increasingly influential nature of these operations has become paramount. The international rule of law hinges on unanimity among states, revealing the absence of a universally agreed-upon interpretation of international legal instruments and fundamental principles. These norms are designed to regulate state behavior, prevent conflict, and maintain global stability. However, state actors like Russia and China have demonstrated a sophisticated understanding of this system, exploiting its intricacies for strategic gains. As a result, we find ourselves at a crossroads where the principles of the international legal order are weaponized and manipulated in pursuit of political objectives. This nuanced phenomenon is exemplified in the complex interplay of state actors, legal instruments, and information warfare. Hence, understanding the nature, implications, and counter-strategies related to MALOPs has become crucial in maintaining international stability and upholding the customs and principles of the law itself. This situation underscores that the international legal system is a battleground where states vie for influence and shape perceptions of legitimacy to advance their political objectives. As such, the law, particularly PIL, should be considered both an instrument of conflict and an operating domain within which conflict occurs. Traditionally, the acquisition of power was synonymous with military force, but modern conflict introduces a new paradigm. It suggests that power shifts can be achieved through the artful manipulation of international legal norms, blurring the lines between the legal and political domains. This ability to acquire power without the overt use of force represents a form of asymmetry, even for those confronted by more powerful adversaries. This research delves into the complexity of this asymmetric phenomenon, one that creates power disparities by twisting international norms and laws to prevent measured responses from those who adhere to these norms. The terminology often employed to describe this multidimensional strategy is hybrid warfare. Yet, this term falls short of comprehensively capturing the essence of the challenge posed by MALOPs and has no normative significance within the accepted body of PIL. Similarly, the concept of lawfare exists as a bumper-sticker attempt to educate non-lawyer decision-makers, military leaders, and politicians about the use of law to achieve strategic military objectives. It originally applied primarily in the context of non-state radical organizations. However, the term has undergone various redefinitions, leading to debate and over-politicization. Ultimately, it has failed to provide a satisfactory characterization of the role of law, particularly PIL, in modern conflict. As such, the dissertation introduces the concept of MALOPs, aiming to serve as an all-encompassing framework to describe, identify, and counter the modern manipulation of legal domains. It distinguishes between clever applications of legal mechanisms within the boundaries of the law and manipulations that involve mischaracterizing or distorting the law's spirit and intent to feign legitimacy. This comprehensive framework is essential for recognizing and addressing the multidimensional nature of MALOPs. The dissertation provides numerous historical and contemporary examples of these operations, including in-depth legal analysis and emphasizing the critical need for this framework in contemporary international affairs. The principal example is Russia’s invasion of Ukraine that began in 2014 and continues today. However, Russia’s invasion of Georgia in 2008, China’s illegal accession of territory in the South China Sea, and the legal manipulations of transnational terrorist organizations and unrecognized entities are also major examples used throughout this research. The introduction provides an overview of the problem and summarizes this author’s research and contributions to the state of the art. Chapter 1 discusses the current crisis of international law and explores what role hybrid warfare has, if any, in contemporary legal discourse. It determines that the concept has no normative significance and should be discarded. Chapter 2 discusses the notion of lawfare as it relates to the current crisis and determines that the term has no commonly accepted meaning or significance beyond political applications. It, too, should be discarded. Chapter 3 formally introduces the theory of Malign Legal Operations and Chapter 4 provides the Counter-MALOPs toolkit. Finally, Chapter 5 addresses Russia’s 2022 total invasion of Ukraine and highlights several limitations and victories as it pertains to PIL and Russia’s aggression. This research is not a singularly comprehensive solution to the problem of malign legal manipulation, particularly between major state powers. However, it offers a new baseline for future researchers to explore this phenomenon and develop new and creative solutions. Perhaps the greatest challenge to the theory of MALOPs is that many states manipulate the law for political benefit. However, there exists a major difference between a state employing MALOPs as a matter of political expedience, or perhaps as a strategic blunder, and those recognized and unrecognized entities that employ MALOPs as a matter of state doctrine or strategy to achieve an objective. It is crucial to clarify that a mere violation of the law does not automatically constitute MALOPs. To be classified as such, the manipulation of legal domains must involve a particular level of sophistication, misrepresentation, or distortion of international norms. The dissertation outlines a range of tactics to counter and dissuade MALOPs, categorized within the Counter-MALOPs Toolkit. These strategies encompass the identification of MALOPs through literacy and intelligence, the disruption of these manipulations through integrated strategic litigation, the illumination of MALOPs, accountability mechanisms, and the defense of legal domains through legal resilience and deterrence, red teaming and war gaming, and the closure of legal gaps and loopholes. Furthermore, those engaged in the task of countering MALOPs are referred to as MALOPs Defenders. This term acknowledges the role of individuals, be they legal experts, policymakers, or international entities, in safeguarding international norms and confronting the manipulation of legal domains. It underscores the importance of education, awareness, and international cooperation in addressing this issue effectively. Ultimately, the existence of a comprehensive theory of Malign Legal Operations provides legal theorists and practitioners with a foundational framework to build a harmonious and principled body of international law. As President Zelenskyy aptly stated,"right now, it depends on our joint efforts whether humanity will have such an instrument as international law." The overarching objective is to preserve and protect international law itself, as it remains a crucial instrument for resolving conflicts and maintaining global stability. This research underscores the necessity of acknowledging the problem, creating a shared vernacular for discourse, and developing a foundational body of work to further the legal theory that safeguards international norms. In this era of evolving conflicts and manipulations of legal domains, preserving and safeguarding international law is of paramount importance, calling for collaborative efforts from governments, legal experts, and international entities alike.