Academic journal article Case Western Reserve Journal of International Law

Lawfare and the Definition of Aggression: What the Soviet Union and Russian Federation Can Teach Us

Academic journal article Case Western Reserve Journal of International Law

Lawfare and the Definition of Aggression: What the Soviet Union and Russian Federation Can Teach Us

Article excerpt

One might ask why the Soviet Union so adamantly promoted a definition of aggression and aggressive war while, as many have noted, conducting military actions that appeared to violate the very definition they espoused in international treaties and conventions. Using treaties, the Soviet Union and Russian Federation practiced a program of lawfare long before the term became known. "Lawfare, " as used by the Soviet Union and Russian Federation, is the manipulation or exploitation of the international legal system to supplement military and political objectives legally, politically, and equally as important, through the use of propaganda. Lawfare was not the sole domain of the Soviet Union or the Russian Federation. What makes the Soviet Union and the Russian Federation stand out is their use of lawfare earlier and with a greater degree of consistent strategic implementation than others. They also continued to operate on a dual front, both legally in international bodies and through international law, and illegally or quasi-legally, when they manipulated the system to supplement their military agenda. With a consistent definition of aggression and aggressive war in place, a degree of predictability could be achieved in regard to future actions of other states and international bodies such as the United Nations. The Soviet Union proves the perfect case study to demonstrate the use of lawfare. The Council on Foreign Relations claimed lawfare was a "somewhat of a new phenomenon, the full effects of its application are yet unknown." (1) I argue that this is not a somewhat new phenomenon and has been practiced by the Soviet Union for decades. In order to preclude further actions, such as the ones demonstrated by the Soviet Union time and again, enforcement will be the key. Without solid enforcement mechanisms, this case study is only a demonstration of the weakness of the system. The lessons learned from the Soviet experience of the use of the definition of aggression as a form of lawfare should be considered by all as the discussions continue on the application and the execution of the definition. And, as for the concept of lawfare as applied through the use of the definition of aggression, one need only look to the Soviet Union to see the successful use of an old concept with a new name.

 I. INTRODUCTION
II. LAWFARE BACKGROUND
    A. The Soviet Era
    B. The Russian Federation Era

I. INTRODUCTION

On June 11, 2010, the Review Conference of the Rome Statute, which was held in Kampala, Uganda between May 31 and June 11, 2010, adopted, by consensus, amendments to the Rome Statute that defined the crime of aggression. Article 8, which contains the most relevant text, states:

1. For the purpose of this Statute, "crime of aggression" means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

2. For the purpose of paragraph 1, "act of aggression" means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

c) The blockade of the ports or coasts of a State by the armed forces of another State;

d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. …

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