Countering Threats Below the Threshold of War

Major Juliet Skingsley

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The announcement of a significant increase in the defence budget marks a new era in how the UK military will operate – but also brings into sharp focus a much-needed examination of exactly how the military should operate under international law.

Operations in the ‘sub-threshold battlefield’ – often referred to as the ‘grey zone’, where states and non-state actors compete in a hostile manner using a variety of tactics but below the threshold of war – have always been complicated by the lack of agreed protocols by those involved. The reality is, however, that the grey zone is far from a ‘rules-free’ battlefield.

Increasingly, asymmetrical activities in the grey zone harm UK interests and undermine international security, while the rapid pace of technological developments and the proliferation of activity such as cyberattacks make the need for change in how the UK operates even more urgent.

Creating doubt and confusion

A key tactic of some grey zone actors is to sow doubt and confusion as to the legitimacy and value of long-standing legal and ethical principles of democratic countries, and the UK should be wary of this in how it chooses to respond.

International law norms such as non-intervention in the affairs of other states, the prohibition on the use of force, and the use of countermeasures, already exist as effective principles and tools to interpret and counter activities in the grey zone. This was affirmed by the UK in 2018 when it was one of the first to publicly outline its position on the application of international law to cyber operations, a key grey zone activity.

This context has been brought to the fore by the recent announcement of the ‘Integrated Operating Concept 25’ by the UK’s chief of the defence staff. Hailed as ‘the most significant change in UK military thought in several generations’, it seeks to integrate military effort across all domains and levels of war, across government, and with allies, to counter threats both above and below the threshold of war.

The announcement also makes reference to a need to update the UK’s ‘legal, ethical and moral framework’ in order to ‘deny (the UK’s) adversaries the opportunity to undermine (UK) values’. While there is clearly a need for far more detail on how this may impact the existing framework of law or current UK values, the breadth of this statement suggests that the proposed changes – perhaps unintentionally – may affect the bounds of usual procedures and existing legal parameters.

This lack of clarity could prove to be a chink in UK armour so, to maintain its credibility and security, the UK should explain what is meant by this. In particular, the UK should ensure there is no misleading impression of undermining the importance and application of existing international law – of which the UK has long been a champion – in meeting grey zone challenges. If no such broad changes are envisaged then it is equally important this is swiftly clarified.

Even an indication that the legal and ethical framework is in need of updating may play directly into the hands of the UK’s adversaries, who could seize on this and manipulate it through use of calculated narratives to cast doubt and sow confusion on the values the UK has long held dear, therefore putting the country at risk of losing in the grey zone by its own hand. Clarity is critical.

A clear line must be maintained on what the UK’s legal and ethical boundaries are, as any doubt could muddy the waters as to the parameters of what is widely perceived as acceptable state conduct by like-minded states, which in turn could make it hard to effectively hold adversaries to account for norms violations or to call on allies to behave in a similar fashion.

Short-term gains in greater freedom of action could amount to a long-term loss in preventing escalation of force, so maintaining a clear position on the importance of adhering to and strengthening existing rules and norms – both to allies and adversaries – is more important.

Reaffirm existing international law

Debate is ongoing over the precise scope and interpretation of some areas of international law which may apply in the grey zone – particularly in relation to cyber operations – but the UK should continue to promote and reaffirm existing international law principles rather than risk any impression of seeking to ‘undo’ the application of this framework.

Implementing a clear narrative on the importance of international law principles also provides strategic advantage in the grey zone which could be useful in forums such as the UN GGE (United Nations Group of Governmental Experts) in seeking agreement on certain norms to promote trust and predictability in cyberspace.

The threats which proliferate through grey zone activity must be met effectively and do require changes in how the UK operates. But any changes to the UK’s legal, moral, and ethical framework should be approached with caution as this may unwittingly collude with adversaries by initiating a ‘race to the bottom’ whereby long-standing values could be gradually eroded.

The UK should continue to view its commitment to long-held principles as a source of strength rather than a vulnerability. Statements in support of the existing rules-based international order, a strategic narrative on the value of its principles and the application of existing international law, with ongoing contributions to agreeing international norms for cyber and other activities will do much to strengthen the UK’s position in the long-term.

Such an approach would also set strong precedents for other states to follow, just as in the past when the UK was the first to confirm its interpretation of the application of international law to cyberspace.

And by highlighting long-standing legal and ethical principles as a key element of justification for activities in the grey zone, the UK would add legitimacy to its actions, which then encourages others to follow suit and reinforces international norms for responsible state behaviour.

Any perception that the UK is seeking to weaken its legal and ethical framework in pursuing certain military activities could undermine this progress and, in turn, reduce wider confidence in the usage of existing international rules and norms.