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Exposec DefenseWorld 2019 - Andres Munoz Mosquera

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Andres Munoz Mosquera, Director of the ACO/SHAPE Office of Legal Affairs, Supreme Headquarters Allied Powers Europe, NATO

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Exposec DefenseWorld 2019 - Andres Munoz Mosquera

  1. 1. 7 May Non-edited version 1 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. 1 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.
  2. 2. 7 May Non-edited version 2 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.

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