EXPOSEC DEFENSEWORLD - Conference 2019
LEGAL OPERATIONS RESPONSE (LAWFARE). LEGAL RESILIENCE
*Andres B. Munoz Mosquera1
1. What is Legal Resilience and why it is needed?
The Spanish Royal Academy defines resilience as the adaptation capacity of a living being
in front of a disturbing agent or an adverse state or situation. Another meaning would be
that of the capacity of a material, mechanism or system to recover its initial state when the
disturbance to which it had been subjected has ceased. In a security and defense context,
resilience would generally require continuous preparation for developing adaptation and
recovering capacities. These capacities - and means - are instrumental for presenting a
credible deterrence posture and eventually an efficient and effective defence.
In this vein, NATO considers resilience as a component of preparedness in order to
present an effective deterrence posture and defence capacity. In Hybrid Threats
environments, having credible deterrence and defence postures will make the difference
between success and failure; since these posture are enablers to deescalate Hybrid Threats’
materializations – Gray Zone and Hybrid Warfare, and also by raising costs of using hybrid
methods to unaffordable political, social, economical, military and legal prices.
In Gray Zone and Hybrid Warfare environments, the resilience lines of effort must
focus, in the following order of precedence, on: a) keeping the cohesion of the instruments
of powers of a state, or an alliance – like NATO, b) building-up the legal authority in order
to harden democratic institutions and the constituents’ credibility on them, and c)
countering the opponent’s narrative in order to undermine the support received by the
opponent. Items a. and b. require much of ‘Legal Resilience’ to occur.
Legal Resilience presents itself as a trench to defend the Rules-Based societies
against the pains – if not the damage, created by ‘bad-intentioned revisionists’. Legal
Resilience comes to ensure the maintenance of a requirement, i.e., a societal harmony, to
set references, which permit physical and moral persons to act and interact freely within
known and predictable margins of coexistence. Legal Resilience has now become a
requirement of itself for law-abiding states in order to keep their rule of law systems stable,
reliable and predictable before any ‘attack’, which sooner or latter will operate against
those systems. While ordinary life requires legal frameworks with plausible Legal
Resilience capacities, this is even more crucial in all Hybrid Threats scenarios, which are
currently dominant, either in the form of Hybrid Warfare or Gray Zone, since the
instrumentalization of law is one of their ‘preferred’ tools.
Graduate from The Fletcher School of Law and Diplomacy and NATO Defense College. Member of the Bar
Association of Madrid and CCBE European Lawyer. Director of the Office of Legal Affairs of the NATO
Supreme Headquarters Allied Powers Europe.
DISCLAMER: The views and opinions of the author expressed herein do not state or reflect those of the
universities he is alumni of, associations he belongs to nor the organization he works for.
In spite of the ‘imperfections’ of functionalist views of law, the construction of
Legal Resilience to be effective must take such an approach. Legal Resilience is built based
on values shared by a ‘community of interest’, which is in continuous negotiation to
identify the common values and legal frameworks to approach and channel them over the
time and space when they become deviants due to the natural evolution of societies.
2. Legal Domain
Legal Resilience works by anticipating and identifying ‘legal attacks’ through developing
prudent planning, promoting multi-disciplinary legal interoperability and training including
all possible worse-case legal scenarios.
The manifestation of Hybrid Threats – Gray Zone and Hybrid Warfare - use
methods and techniques in all available domains, mainly in those that do not require kinetic
activities, such as the cyber domain, ‘neuromarking’ or Information Operations/Strategic
Communications. Gray Zone and Hybrid Warfare masterly use these two domains.
However, law must not be forgotten, since it is not only non-kinetic, but also provides
‘economy of force’ and provides in many occasions the ‘charge’ to the other two. Law and
legal interactions – legislative activities, judgments, interpretation, etc. – have sufficient
entity to count on its own domain.
Visualizing law as a domain will give the Legal Resilience concept more plasticity
in order to be removed from abstract constructions. Actually, considering law as a domain
is an ‘Offset Strategy’. It provides competitive advantage when hasty circumstances and
short decision-making time are the norm, since it creates skills to better confront those
debasing law and its principles. The identification of law as a domain creates necessary
synergies among the different instruments of power.
3. Conclusion. Legal Resilience and Legal Deterrence
Legal Resilience can and must be a political and strategic goal, since the gains from
governing the Legal Domain has become enticing for revisionists. Although in the above
paragraph it has been explained the parameters relating to preparedness and capabilities, it
is also necessary to establish and maintain a fluid and sincere dialogue among law-abiding
actors in order to cover all 360-degree areas that build Legal Resilience. Eventually,
individual and collective good planning and training, the development of intra and inter
legal interoperability, and the sharing of best practices and capabilities will serve to resist
legal ‘attacks’ and legal threats or challenges from revisionists of rule of law order,
minimize damages to law-abiding societies, speed up their adaptation and recovery, and
most importantly generate Legal Deterrence.